Harrell v. J. P. Stevens & Co. , 45 N.C. App. 197 ( 1980 )

262 S.E.2d 830 (1980)

Lillian S. HARRELL, Executrix of the Estate of Louis F. Harrell, Deceased Employee, Plaintiff,
v.
J. P. STEVENS & CO., INC., Employer, Liberty Mutual Insurance Company, Carrier, Defendants.

No. 7910IC539.

Court of Appeals of North Carolina.

February 19, 1980.

Davis, Hassell & Hudson, by Charles R. Hassell, Jr., Raleigh, for plaintiff-appellant.

Maupin, Taylor & Ellis, by Richard C. Titus and Richard M. Lewis, Raleigh, for defendants-appellees.

HEDRICK, Judge.

The duties of the Industrial Commission, when deciding a claim under G.S. § 97-53(13), have been recently enunciated by our Supreme Court in Wood v. J. P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). Speaking through Chief Justice Sharp, the Court said:

Whether a given illness falls within the general difinition [sic] set out in G.S. 97-53(13) presents a mixed question of fact and law. The Commission must determine first the nature of the disease from which the plaintiff is suffering— that is, its characteristics, symptoms and manifestations. Ordinarily, such findings will be based on expert medical testimony. Having made appropriate findings of fact, the next question the Commission must answer is whether or not the illness plaintiff has contracted falls within the definition set out in the statute. This latter judgment requires a conclusion of law.

Id. at 640, 256 S.E.2d at 695-96.

In the present case the Commission made the following findings:

FINDINGS OF FACT

1. Plaintiff . . . has worked in a textile mill all his working life, mostly in the card room. His several jobs required him to be in a work atmosphere that was heavy with both cotton dust and lint.

2. Plaintiff has smoked cigarettes since he was a young boy although he never smoked as much as a pack a day. Although plaintiff claims to have stopped smoking 10 years ago, from credible evidence it is found that plaintiff smoked regularly until at least September, 1975 and has smoked cigarettes occasionally since then.

3. Plaintiff began seeing Dr. M. C. Maddrey, a general practitioner in Roanoke Rapids, in September, 1969. He was diagnosed as suffering from hypertension for which he was given medication and obesity for which he was advised to lose weight.

In November, 1969, plaintiff began to complain of chest pains to Dr. Maddrey and plaintiff was hospitalized. Dr. Brown, an internist in Roanoke Rapids was asked by Dr. Maddrey to consult on plaintiff's case regarding the chest pain. Dr. Brown also noted plaintiff's obesity. Plaintiff was not complaining of shortness of breath.

4. In March, 1970, Dr. Brown hospitalized plaintiff for chest pain and in June referred plaintiff to Duke for an evaluation of the suspected heart problem.

5. Plaintiff was admitted to Duke University Medical Center under the care of Dr. Whalen, a specialist in cardiovascular medicine, from June 14th to June 20th, 1970. After extensive tests, the diagnosis was: (1) arteriosclerotic heart disease with angina pectoris and (2) obesity. Dr. Whalen did not recommend heart surgery at that time, but suggested medication.

Plaintiff was examined routinely and often by Dr. Maddrey or Dr. Brown for the chest pains and the heart medication was continued by them.

6. In September 1972, plaintiff complained to Dr. Brown of a cough. Dr. Brown's impression was that plaintiff had an acute respiratory infection. The condition responded to treatment and in December, 1972, the condition had cleared.

From that time until 1974, plaintiff would have flare-ups of acute bronchitis treated by Dr. Brown.

7. In February, 1975, plaintiff was hospitalized by Dr. Maddrey for asthmatic bronchitis.

In September, 1975, Dr. Maddrey again hospitalized plaintiff with the following diagnoses: (1) traumatic arthritis of the right knee; (2) asthmatis [sic] bronchitis; (3) obesity. Dr. Maddrey again recommended plaintiff lose weight—both to ease the weight on the knee and to help his breathing.

8. Plaintiff was again seen by Dr. Whalen on September 30, 1975 for a routine check. He indicated he was still having chest pain.

9. On July 26 and again on August 12, 1976, plaintiff was examined by Dr. M. K. Topolosky, a pulmonary medicine specialist at Duke University Medical Center. Plaintiff's complaints were shortness of breath and chest pains and he gave Dr. Topolosky a history indicating that he had these problems both in and out of the work environment. Dr. Topolosky was of the opinion that plaintiff had moderate to severe chronic obstructive pulmonary disease, but that his major disabling factor was his heart.

10. Plaintiff had "retired" from defendant-employer on June 28, 1976. He had requested less strenuous work because of his heart condition, but that had been refused.

11. In November, 1976, plaintiff was hospitalized for his heart condition. Dr. Whalen saw him during November for a routine re-check and concurred that plaintiff was totally disabled as a result of his heart since plaintiff was having chest pains at rest as well as with exertion.

12. In January, 1977, plaintiff went to Dr. Brown complaining of chest pain and shortness of breath. Dr. Brown was of the opinion this was related to plaintiff's heart disease.

13. Plaintiff was in Duke University Medical Center from February 4th to February 13th, 1977. On his way to see Dr. Sieker within the hospital, he suffered a heart attack. The discharge diagnoses were multiple and included: (1) arteriosclerotic cardiovascular disease and the myocardial infarction secondary thereto; (2) chronic obstructive pulmonary disease, probably secondary to byssinosis (plaintiff had given a history of the Monday morning syndrome which is characteristic of byssinosis); (3) obesity and other problems.

14. Dr. Brown examined plaintiff on February 21, 1977 and continued treatment for angina and shortness of breath because of congestive heart failure.

15. Plaintiff saw Dr. Kunstling of Raleigh on the order of the Industrial Commission on June 30, 1977. The history plaintiff gave Dr. Kunstling on which he based his diagnosis of byssinosis is wholly in conflict with complaints given contemporaneously to Drs. Brown, Maddrey, Whalen, and Topolosky and is therefore discounted.

16. Plaintiff's total disability is a result of his heart condition. Plaintiff's heart condition is unrelated to plaintiff's exposure to cotton dust and lint in his employment.

17. The plaintiff has failed to carry his burden of proof that he is disabled as a result of an occupational disease arising out of and in the course of his employment by defendant-employer.

When all of the "findings of fact" made by the Commission are considered in light of G.S. § 97-53(13), and the principles enunciated in Wood v. Stevens, supra, it is clear that the Commission has failed to make sufficient definitive findings to determine the critical issues raised by the evidence in this case. [See also Cannady v. Gold Kist, 43 N.C.App. 482, 259 S.E.2d 342 (1979).] Moreover, we note that "findings" numbers 3 through 14 are largely a mere chronicle of the course of plaintiff's treatment by various physicians, their diagnoses and evaluations. At best, they only summarize the evidence.

Assuming that "findings of fact" numbers 16 and 17, although negatively expressed with respect to the essential issues to be determined, are sufficient to support the conclusion that the plaintiff did not suffer from a compensable occupational disease within the meaning of the statute, the statement of the Commission in "finding of fact" number 15 requires that the order be vacated and the cause remanded for further proceedings.

It is the duty of the Commission to consider all of the competent evidence, make definitive findings, draw its conclusions of law from these findings, and enter the appropriate award. In making its findings, the Commission's function is "to weigh and evaluate the entire evidence and determine as best it can where the truth lies." West v. J. P. Stevens, 6 N.C.App. 152, 156, 169 S.E.2d 517, 519 (1969). [Emphasis added.] To weigh the evidence is not to "discount" it. To weigh the evidence means to ponder it carefully; it connotes consideration and evaluation; it involves a mental balancing process. To "discount" the evidence, on the other hand, is to disregard it, to treat it as though it had never existed, to omit it from consideration. While the Commission is the sole judge of the credibility of witnesses and may believe all or a part or none of any witness's testimony, Morgan v. Thomasville Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968), it nevertheless may not wholly disregard competent evidence. Contradictions in the testimony go to its weight, and the Commission may properly refuse to believe particular evidence. But, it must first consider the evidence, and the statute itself so commands in the case of evidence supplied by the Commission's own advisory medical committee. G.S. § 97-71.

We think it significant that the Commission ordered that the plaintiff be examined by Dr. Kunstling, the only pulmonary specialist to diagnose plaintiff's condition. Yet, the Commission inexplicably chose to "discount" his testimony. That the plaintiff might have given contradictory statements of his medical history to Dr. Kunstling does not thereby render his testimony incompetent. As we noted, contradictions in the evidence go to its weight, and the Commission may consider any such inconsistencies in weighing the testimony of Dr. Kunstling and, equally, in weighing the testimony of the other experts.

For the reasons stated, the Opinion and Award of the Commission dated 15 December 1978 is vacated, and the proceeding is remanded to the Commission to consider all the evidence, make definitive findings and proper conclusions therefrom, and enter the appropriate order.

Vacated and remanded.

VAUGHN and CLARK, JJ., concur.