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Ward v. Beaunit Corp.

Filed: March 2, 1982.

CORBETT C. WARD, EMPLOYEE, PLAINTIFF
v.
BEAUNIT CORPORATION, EMPLOYER: AND LIBERTY MUTUAL INSURANCE COMPANY, AND/OR AMERICAN EMPLOYERS INSURANCE COMPANY, CARRIERS, DEFENDANTS.



Appeal by plaintiff from the Industrial Commission. Order and opinion entered by the Industrial Commission on 22 December 1980. Heard in the Court of Appeals 14 January 1982.

Wells, Judge. Judges Martin (Robert M.) and Webb concur.

Wells

Under the provisions of G.S. 97-86, the Industrial Commission is the fact finding body, and findings of fact made by the Commission are binding on appeal if supported by competent evidence. Walston v. Burlington Industries, 304 N.C. 670, 285 S.E.2d 822 (1982); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981); Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981). In making its findings of fact, however, it is the duty of the Commission to consider, weigh, and evaluate all of the competent evidence before it. Harrell v. Stevens & Co., 45 N.C. App. 197, 262 S.E.2d 830 (1980); disc. rev. denied, 300 N.C. 196, 269 S.E.2d 623 (1980). In making its findings of fact, the Commission may not ignore, discount, disregard or fail to properly weigh and evaluate any of the competent evidence before it. Harrell, supra. The Commission has failed in this aspect of its duty in this case and the case must therefore be remanded.

To begin our analysis, we note that the opinion consists of three main sections, labeled as "findings of fact," "comment" and "conclusions of law." The findings of fact include much mere recitation of evidence which does not rise to the level of fact finding. The findings of fact include conclusions. The "comment" portion includes referrals to the evidence, findings of fact, discussions of case law, and conclusions. Opinions from the Commission written in this way make appellate review more challenging than it perhaps need be.

In the first 18 findings of fact, the opinion deals generally with plaintiff's employment and health history, his regular exposure to cotton dust in his employment for about 41 years, his smoking habits, and the onset of plaintiff's breathing difficulties in early 1974. The problems begin with finding of fact 19, where the opinion begins to deal with the testimony of Dr. Williams, and continue in findings 21, 23 and in the findings and conclusions reached in the "comment" section of the opinion. Because of the nature of the errors reflected in the opinion, we find it appropriate to quote at some length:

19. On 5-8-78, plaintiff was seen by Dr. Charles Williams, Jr. for pulmonary evaluation. His report indicates that plaintiff gave a history of gradual onset of dyspnea beginning about 1974, that at the present time he becomes short of

breath on walking approximately one city block on the level, that he had had some chronic cough and production of sputum for about eight years and that he had no history of asthma but had had frequent wheezing. Plaintiff gave a further history of, among other things, working for 49 years, mostly with cotton but some flax also and synthetic materials and having worked in the card room approximately 30 out of the 49 years, retiring in May 1974. In addition, for the last 4-5 years of work he noticed some chest tightness and shortness of breath related to occupational dust exposure. It was further reported that he stated this was definitely worse on Monday and would become improved later in the week, that as time went by his symptoms were as severe on one day of the week as another and that he also had frequent nasal congestion for several years. To the extent that this history given by plaintiff is in conflict with or not corroborative of the facts as heretofore found, it is not accepted as competent credible evidence. (Emphasis supplied)

21. In the "Discussion" section of his report, Dr. Williams stated:

"It is the opinion of this examiner that the individual does have byssinosis, this diagnosis being based on typical symptoms of chest tightness and dyspnea on exposure to occupational dust with Monday morning exacerbation. In addition, he has the usual clinical X-ray and pulmonary function findings of chronic obstructive pulmonary disease. Undoubtedly, cigarette smoking is a contributory factor in the production of his pulmonary emphysema and chronic bronchitis. It is not possible to state what percentage of his disability resulted from various contributory factors. . . ."

Dr. Williams was of the further opinion that plaintiff is totally disabled from work due to a combination of chronic obstructive pulmonary disease and arteriosclerotic heart disease with angina pectoris and that he is not able to perform work outside of exposure to irritating inhalants. Dr. Williams estimated that 50% of plaintiff's disability might be due to dyspnea resulting from chronic obstructive pulmonary disease and 50% from exertional chest pain resulting from

arteriosclerotic heart disease. Dr. Williams' report, including his assessment regarding byssinosis is without probative force or evidentiary value inasmuch as two of the principal bases thereof are not ...


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