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Taylor v. Stevens

Filed: October 2, 1979.

LUCY WOOD TAYLOR, PLAINTIFF, EMPLOYEE
v.
J.P. STEVENS AND COMPANY, EMPLOYER, LIBERTY MUTUAL INSURANCE COMPANY, CARRIER, DEFENDANTS



Appeal by plaintiff from award of the Industrial Commission. Award of the Full Commission affirming the opinion and award of Deputy Commissioner Conely entered 9 May 1978. Heard in the Court of Appeals 23 August 1979.

Martin (Robert M.), Judge. Judge Webb concurs. Judge Vaughn concurs in the result.

Martin

The hearing officer and the full Commission have decided plaintiff's claim upon an erroneous theory of law. The dictum in Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410 (1957), upon which the denial of plaintiff's claim was predicated is apparently no longer valid. See Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979); Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979). This cause is remanded for further evidentiary hearings to receive sufficient pertinent evidence so as to enable the hearing officer to make a factual finding as to the date upon which plaintiff's disablement became sufficiently extensive to prevent her from pursuing her employment, and upon such a finding to determine which statutory provisions are applicable, Woods v. Stevens Co., supra. The Commission is bound on remand by its findings and conclusions in the present record that plaintiff is disabled, and that the disablement is the result of an occupational chronic obstructive lung disease contracted as a result of her exposure to cotton dust in her employment. We need not consider whether the full Commission abused its discretion in failing to receive additional evidence upon motion from plaintiff; new hearings will in any event be required to make the determination we find to be required under Wood v. Stevens Co., supra.

The award of the full Industrial Commission affirming the hearing officer's denial of plaintiff's claim for compensation is vacated. The cause is remanded for further proceedings not inconsistent with this opinion and consistent with the cases cited above.

Vacated and remanded.

Disposition

Vacated and remanded.

19791002

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