Thompson v. Burlington Industries

297 S.E.2d 122 (1982)

Sallie M. THOMPSON, Employee, Plaintiff,
v.
BURLINGTON INDUSTRIES, Employer, and
Liberty Mutual Insurance Company, Carrier, Defendants.

No. 8110IC1420.

Court of Appeals of North Carolina.

November 16, 1982.

Hassell, Hudson & Lore by Charles R. Hassell, Jr., Raleigh, for employee, plaintiff.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr., Greensboro, for carrier, defendants.

ARNOLD, Judge.

Plaintiff's first argument is that the Industrial Commission erred in denying her claim for temporary total disability and medical expenses resulting from her occupational disease.

An occupational disease must be "proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment." G.S. 97-53(13). If the medical evidence tends to show that plaintiff suffers from an ordinary disease of life to which the general public is equally exposed, which is not proven to be due to causes and conditions which are characteristic of and peculiar to any particular trade, occupation or employment and which is not aggravated or accelerated by an occupational disease, her claim is not compensable. Walston v. Burlington Industries, 304 N.C. 670, 285 S.E.2d 822 (1982).

Dr. Hayes' medical evaluation was that plaintiff had asthma and was allergic to grass, trees, house dust, tobacco, feathers, and fungi. The doctor concluded:

This patient by history has mild asthma. I expect that any dusty environment or exposure to various irritating fumes could trigger an asthmatic attack. In such cases, it is frequently impossible to discern a direct cause and effect relationship between cotton dust exposure and symptoms. It should, however, be noted that the typical symptoms of Monday morning chest tightness progressing to fixed airway obstruction that have been classically called byssinosis are not historically present in this case.

Except as to questions of jurisdiction, findings of fact made by the Commission are conclusive on appeal when supported by evidence, even if there is evidence which supports a contrary finding of fact. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). The medical evidence in this case overwhelmingly supports the Commission's findings that "plaintiff has asthma which was exacerbated by exposure to cause and conditions in her employment ... however, she does not retain any permanent functional pulmonary impairment as a result thereof nor did she incur any compensable disability attributable thereto following her removal ... from ... textile employment." Since plaintiff suffered from asthma, an ordinary disease of life, and did not retain any permanent functional pulmonary impairment after she quit her job, she did not have an occupational disease.

Plaintiff's second argument is that the Industrial Commission erred in denying her motion to present newly discovered evidence. Plaintiff contends that the new evidence must be received if good ground is shown. The pertinent portion of G.S. 97-85 provides:

If application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award....

Whether good ground is shown is within the sound discretion of the Commission, and the Commission's determination in that regard will not be reviewed on appeal absent abuse of discretion. Lynch v. M.B. Kahn Construction Co., 41 N.C.App. 127, 254 S.E.2d 236, review denied, 298 N.C. 298, 259 S.E.2d 914 (1979).

The so-called newly discovered evidence was Dr. Rhodes' evaluations which were made on 14 February 1977 and 2 November 1976. That evidence was used by Dr. Hayes in his evaluation, which was admitted into evidence. Dr. Rhodes concluded that plaintiff was allergic to dust, animal danders, cottonseed, flaxseed, and soybean, and a dusty environment exacerbates her symptoms. This is no different from Dr. Hayes' conclusions. In these circumstances, we find no abuse of discretion.

We have carefully considered plaintiff's assignments of error, and the order of the full Commission is affirmed.

Affirmed.

WELLS and HILL, JJ., concur.