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Anderson v. A.M. Smyre Manufacturing Co.

Filed: October 20, 1981.

CLARENCE WILLIAM ANDERSON, EMPLOYEE
v.
A.M. SMYRE MANUFACTURING COMPANY, EMPLOYER, AND LUMBERMENS MUTUAL INSURANCE COMPANY, CARRIER



Appeal by defendants from North Carolina Industrial Commission. Opinion and award filed 17 October 1980. Heard in the Court of Appeals 23 September 1981.

Becton, Judge. Judges Martin (Robert M.) and Martin (Harry C.) concur.

Becton

Defendant argues that compensation may be awarded only to the extent that a disability results from an occupational disease and that since there is evidence that plaintiff could work at some occupation, compensation (a) should have been apportioned, or (b) should have been based on the loss or injury to an organ (lungs) -- i.e., on the percentage of predicted lung function loss.

Considering the scope of appellate review of an award made by the Commission and the facts in this case, we are, as was the Commission, persuaded that the award of benefits to the plaintiff should be affirmed.

Scope Of Review

The Commission's award is conclusive and binding on us as to all questions of fact. Our review is simply to determine whether the Commission's findings are supported by any competent evidence and whether its subsequent legal conclusions are justified by those findings. See Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676 (1980); Walston v. Burlington Industries, 49 N.C. App. 301, 271 S.E.2d 516 (1980).

Facts

Plaintiff worked in card rooms of cotton mills from 1923 or 1924 until 1978. Card rooms are considered high risk areas for contracting byssinosis.*fn1 Plaintiff began working for defendant in November, 1977, but was forced to retire in May 1978 because of respiratory difficulties. Plaintiff had first experienced breathing difficulties about ten years before he began working for defendant, and at a time when he was working at Groove Thread, another cotton mill. As pointed out by the plaintiff in his brief, evidence was also offered at the hearing that: (1) plaintiff, age 58, has a fifth grade education; (2) prior to his employment in cotton textile mills, plaintiff had no lung disease or breathing difficulties; (3) plaintiff had a light smoking history*fn2; (4) during his employment, plaintiff developed respiratory symptoms of shortness of breath, chest tightness, and a cough with sputum production; (5) Dr. Fred T. Owens, Jr., a medical expert in the field of lung disease, who serves on a panel of pulmonary specialists, examined

the plaintiff and diagnosed his occupational disease as byssinosis; (6) plaintiff's last injurious exposure to the hazards of cotton dust was at his employment with defendant; (7) plaintiff had not done, and had no training to do, any work other than textile work; (8) Dr. Owens opined that "six months exposure, at the end of [plaintiff's cotton mill] career, would constitute injurious exposure;" and (9) Dr. Owens considers the plaintiff to be 50% to 70% disabled using the AMA criteria for impairment and totally disabled to perform his former textile employment.*fn3

Law

The controlling statute is G.S. 97-53(13) which deems an ...


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