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Harrell v. J. P. Stevens Inc.

Filed: November 17, 1981.

LILLIAN S. HARRELL, EXECUTRIX OF THE ESTATE OF LOUIS F. HARRELL, DECEASED, EMPLOYEE, PLAINTIFF
v.
J. P. STEVENS , INC. EMPLOYER, AND LIBERTY MUTUAL INSURANCE COMPANY, CARRIER, DEFENDANTS



Appeal by plaintiff from the North Carolina Industrial Commission opinion and award of 29 September 1980. Heard in the Court of Appeals 15 October 1981.

Vaughn, Judge. Judges Hill and Whichard concur.

Vaughn

Plaintiff's appeal challenges the sufficiency of evidence to support a denial of his claim to compensation. We hold there is sufficient evidence to support the Commission's order.

We note at the outset that provisions of North Carolina's Administrative Procedure Act do not govern awards of the Industrial Commission. G.S. 150A-1(a). The applicable scope of review is found in G.S. 97-86: "[A]n award of the Commission . . . shall be conclusive and binding as to all questions of fact; but either party to the dispute may . . . appeal from the decision of said Commission to the Court of Appeals for errors of law. . . ."

Our responsibility is twofold. We must first determine whether the Commission's findings are supported by any competent evidence. We must then determine whether the legal conclusions are justified by those findings. Buck v. Proctor & Gamble Co., 52 N.C. App. 88, 278 S.E.2d 268 (1981).

On review, we are not triers of fact. The Industrial Commission has the exclusive duty and authority to find facts related to the disputed claim. Such findings are conclusive on appeal when supported by any competent evidence, even where there is plenary evidence which would permit a contrary finding. Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E.2d 364 (1980); Buck v. Proctor & Gamble Co., supra.

In the present cause, plaintiff excepts to Findings of Fact Nos. 3, 6, 9, 15, 16 and 17. In all material respects, however, we find that all of them can be grounded in the degree credence the Deputy Commissioner elected to give the evidence presented.

The ultimate findings of fact appear to be Nos. 9, 16 and 17 which address the critical issue of disability in 1976. Finding No. 9 is that decedent's disabling condition, as of 12 August 1976, was a result of his heart. We find competent medical evidence to support such a finding. Dr. Robert E. Whalen, Director of the Cardiovascular Disease Service at Duke Hospital, diagnosed plaintiff as having Class III Angina from February 1975 to July 1976. A Class III Angina patient is somewhat limited in activity by pain. Beginning in July 1976 and through November 1976, plaintiff had Class IV Angina. Class IV indicates that plaintiff was generally incapacitated by pain. In a letter dated 19 August 1976, Dr.

Topolosky, a pulmonary medicine specialist, stated that plaintiff's main problem was his cardiovascular disease: "His Copd [chronic obstructive pulmonary disease] is a contributing factor, but he would have to be declared a functional Class III cardiac patient." On a report sent to the Social Security Administration, Dr. Topolosky declared plaintiff disabled due to his cardiac status.

We also find sufficient medical evidence to support Finding No. 16 that plaintiff's total disability arose from a heart condition. In December of 1976, Dr. Maddrey turned over plaintiff's treatment to Dr. Brown. Dr. Brown testified that in January 1977, he diagnosed plaintiff's shortness of breath and chest pains as symptoms of his heart disease. He further stated, "Mr. Harrell has had a heart condition with angina since 1969. The first heart attack . . . would have been when he was at Durham a year ago. In my opinion, Mr. Harrell is disabled certainly because of a heart disease as a primary reason." Dr. Topolosky examined plaintiff on 4 November 1976. In his opinion, plaintiff's main problem was his cardiovascular disease. Dr. Whalen, after reviewing a 12 November 1976 evaluation report and other test results, concluded that plaintiff's heart condition rendered him 100% disabled.

Plaintiff concedes the existence of a disabling nonoccupational heart condition. He notes, however, that every doctor who testified also diagnosed the presence of chronic obstructive pulmonary disease. He argues that if he suffers from a compensable injury, he should not be completely deprived of compensation merely because there also exists an independent, concurrent, noncompensable cause of disability. Daugherty v. Watts, Ky., 419 S.W. 2d 137 (1967). A recent decision by the Supreme Court addresses plaintiff's argument:

"When a pre-existing, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease so that disability results, then the employer must compensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent. On the other hand, when a pre-existing, non-disabling, non-job-related disease or infirmity eventually causes an incapacity for work without any aggravation or acceleration of ...


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