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McKee v. Crescent Spinning Co.

Filed: November 17, 1981.

ROY E. MCKEE, EMPLOYEE
v.
CRESCENT SPINNING COMPANY, EMPLOYER, AND THE TRAVELERS INSURANCE COMPANY, CARRIER



Appeal by defendants from the Opinion and Award of the North Carolina Industrial Commission entered 2 September 1980. Heard in the Court of Appeals 17 September 1981.

Hill, Judge. Judges Hedrick and Whichard concur.

Hill

Our review of an award by the Industrial Commission is limited to two questions: (1) whether the Commission's findings are supported by competent record evidence; and (2) whether those findings justify the Commission's conclusions of law. Inscoe v. DeRose Industries, 292 N.C. 210, 232 S.E.2d 449 (1977); Walston v. Burlington Industries, 49 N.C. App. 301, 271 S.E.2d 516 (1980). In their first two assignments of error defendants argue that the Commission erred in its finding that plaintiff's byssinosis was the cause of his pulmonary disease because of evidence that chronic bronchitis was present when the byssinosis first was diagnosed. Defendants assign as error the Commission's failure to conclude that plaintiff's byssinosis was secondary to his chronic bronchitis, contending chronic bronchitis was the disabling factor and is not attributable to plaintiff's employment. We do not agree.

There is no evidence to support defendants' contention that plaintiff's byssinosis was secondary to his chronic bronchitis.

Defendants apparently draw their conclusion from Dr. Harris's testimony that "Mr. McKee has a chronic obstructive lung disease, byssinosis, probable, but there is present chronic bronchitis. I was positive of the bronchitis and in my opinion there was a probability of byssinosis." (Emphasis added.) There is, however, plenary evidence that plaintiff's "chronic obstructive lung disease" -- both chronic bronchitis and byssinosis -- was related to his employment; Dr. Harris's medical report, stipulated into evidence by the parties, so states. Since the evidence shows that both types of "chronic obstructive lung disease" were related to plaintiff's exposure to cotton dust, it is of no consequence that the Commission failed to find that the plaintiff's chronic bronchitis was a contributing factor to his disability. We therefore overrule these assignments of error.

In their remaining assignments of error, defendants argue that plaintiff's claim for benefits was barred by the notice provisions of G.S. 97-22 and 97-58. Defendants contend that notice of plaintiff's injury to his employer required by G.S. 97-22 was filed well beyond "the date that the employee [was] advised by competent medical authority that he [had an occupational disease]." G.S. 97-58(b). We do not agree and overrule these assignments of error.

The Workers' Compensation Act [the Act] contemplates that two events must occur before a workers' compensation claim ripens and the notice provisions are triggered: (1) injury from an occupational disease; and (2) disability. In Taylor v. J.P. Stevens & Co., 300 N.C. 94, 102, 265 S.E.2d 144, 149 (1980), our Supreme Court determined that, "with reference to occupational diseases the time within which an employee must give notice or file claim begins to run when the employee is first informed by competent medical authority of the nature and work-related cause of the disease." (Emphasis added.) Thus, notification of injury in the manner quoted above is a necessary element of the claim. A finding of the date of disability also is necessary to determine which version of the Act to apply in determining benefits. See Wood v. J.P. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). We first must determine, then, at what point plaintiff was informed of the "nature and work-related cause" of his condition.

Defendants contend that plaintiff was properly informed of his injury in 1966 when Dr. McDowell told plaintiff he had a

"breathing problem and if it didn't soon get better to get out of the mill." Defendants contend that plaintiff was further informed in 1970 when Dr. McTesson made his "brown lung" diagnosis. Merely stating one has a "breathing problem and if it didn't soon get better to get out of the mill" or a simple diagnosis of "brown lung" neither advised plaintiff of the nature nor work-related cause of his condition.

In Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 321, 69 S.E.2d 707, 711 (1952), a workers' compensation claimant received a copy of a letter from his doctor stating that examination revealed "'evidence of dust disease'" with a recommendation that the claimant "'be transferred to some other location . . . where the dust hazard would be negligible.'" This advice was found not sufficient to give notice of silicosis, an occupational disease. Id. Similarly, "[i]t is not enough that the workman be told a medical name for his disease, which may be meaningless to him, without a statement of its causal relationship to an extra-hazardous occupation." Williams v. Dept. of Labor & Industries, 45 Wash. 2d 574, 576, 277 P. 2d 338, 339 (1954). Thus, where there is no evidence in the record that "any doctor at any time prior to the filing of the claim specifically told [the claimant], simply and directly, that his condition arose out of his employment or anything clearly to that effect," there is no proper notice of injury to the employee. Templeton v. Pope & Talbot, Inc., 7 Ore. App. 119, 120-21, 490 P. 2d 205, 206 (1971). We find these cases in accord with the rule cited in Taylor v. J.P. Stevens & Co., supra, and their results determinative of the case sub judice.

Plaintiff first was informed of a "breathing problem" in 1966. This diagnosis was accompanied only by an admonition to "get out of the mill"; a recommendation similar, if not less specific, than that given in Singleton v. D.T. Vance Mica Co., supra. Plaintiff testified that in 1970 "a Dr. McTesson told me I had brown lung but he did not tell me what brown lung was. I didn't know it amounted to anything except I had it. I didn't know what caused it and the doctor never told me what caused it." We note that "brown lung" is not a "medical name" but slang terminology for byssinosis. In 1970, when this diagnosis was made, the term clearly was meaningless to ...


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