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Taylor v. Cone Mills Corp.

Filed: March 16, 1982.

DENNIE J. TAYLOR, EMPLOYEE, PLAINTIFF
v.
CONE MILLS CORPORATION, EMPLOYER AND LIBERTY MUTUAL INSURANCE COMPANY, CARRIER, DEFENDANTS



Appeal by plaintiff from the North Carolina Industrial Commission. Opinion entered 31 March 1981. Heard in the Court of Appeals 4 February 1982.

Wells, Judge. Judge Martin (Robert M.) concurs. Judge Webb dissents.

Wells

This appeal presents two questions of law, as follows:

I. Is compensation payable under the Workers' Compensation Act to an employee disabled from byssinosis when the date of last injurious exposure and the date of disability occurred prior to July 1, 1963?

II. Does Chapter 1305, 1979 N.C. Session Laws provide coverage for employees last injuriously exposed and disabled from byssinosis prior to July 1, 1963, even if compensation is not otherwise payable under the Workers' Compensation Act?

The essential facts as to plaintiff's illness found by Deputy Commissioner Roney are not in dispute. The findings as to the nature and manifestation of byssinosis are set forth with such clarity, however, that we deem it appropriate to quote them as follows:

12. Byssinosis is a disease proven to be due to causes and conditions peculiar to and characteristic of employment in cotton textile mills. The precise identity of the offending agent is unknown. . . .

13. The pathology of byssinosis is essentially that of chronic bronchitis; i.e., inflammation of the small airways that conduct air to and from the alveoli. Mucous production and white blood cell recruitment occurs when respirable cotton trash dust falls onto the cells of the airways. Mediators are released, causing narrowing of the airways. An asthmatic like response results. Increase in body temperature and decrease in the capacity of the lungs to exchange gas are acute responses to exposure to respirable cotton trash dust.

[1] Plaintiff first argues that at the time he became disabled in January, 1963, byssinosis fell within the general definition of occupational diseases set out in G.S. 97-53(13), as the statute was then worded, as follows:

Infection or inflammation of the skin, eyes or other external contact surfaces or oral or nasal cavities due to irritating oils, cutting compounds, chemical dust, liquids, fumes, gases, or vapors, and any other materials or substances. (1935 N.C. Pub. Laws ch. 123, as amended by 1957 N.C. Sess. Laws ch. 1396, ยง 6.)

Plaintiff argues that the only medical evidence in the record on point classifies byssinosis as an inflammation of an external contact surface and of the nasal cavities. One of plaintiff's expert medical witnesses was Dr. Kaye H. Kilburn, whose qualifications are, briefly, as follows. Dr. Kilburn became Board Certified in Internal Medicine in 1963. From 1962 to 1969, he was an associate professor of medicine at Duke University, during which time he served as Chief of Medical Service at the Veteran's Administration Hospital in Durham. From 1968 to 1975, he was Director of the Division of Environmental Medicine at Duke University Medical Center. From 1973 to 1977 he served as Director of the Division of Pulmonary and Environmental Medicine at the University of Missouri -- Columbia. At the time he gave his testimony, he was a Professor of Medicine at Mt. Sinai School of Medicine of the City University of New York. Dr. Kilburn's publications number more than one hundred, including a number of papers dealing

specifically with chronic obstructive lung diseases, including byssinosis, in textile workers. Dr. Kilburn has done extensive research on the causes and characteristics of byssinosis.

We believe that Dr. Kilburn's testimony on byssinosis is of such clarity that it would be helpful to bench and bar for us to take the unusual step of quoting it in substantial detail.

Byssinosis has its origins lost almost in antiquity. Evidently, all the time that man has used plant fibers -- cotton, flax and soft hemp for clothing and so on, the processors of these materials have noticed an illness characterized by coughing and shortness of breath. Its classic description was made by Ramazzini in the 1700's in Italy.

Since that time it has been periodically, in a sense, rediscovered, and much of its history is from the Lancashire cotton mill area of England where Kay and Prausnitz did classic studies of it in the 1930's. In the 1950's the team of Schilling and McKerrow also did studies of this disorder which was caused by the breathing of textile dust in mills processing cotton. Interestingly enough, at that time and now, English mills largely process United States cotton.

The Schilling studies and the Hill studies demonstrated that there is an increased illness, chronic respiratory illness which culminates in early retirement for disability. So in England byssinosis has been a compensable disease since the early 1940's, and the requirements have become increasingly lenient.

First, they thought it took twenty years to develop a chronic disease, and then they thought it took ten years. And now I believe it is down to four or five years.

In this country, the experience with the disorder goes back about ten or fifteen years, although there were periodic papers in the 1940's and the early 1950's. Bouhuys and Schilling did a small study in Western North Carolina. I think it was 1961. Dr. Heaphy and I did a small study in Durham, North Carolina in 1963.

Then the substantial studies were begun in Gastonia in 1968 by Merchant and Reiss and Rausch and Harris and

Hamilton and myself and John Lumsden, from the North Carolina ...


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