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Robinson v. Stevens

Filed: June 15, 1982.

WILLIE ROBINSON, EMPLOYEE, PLAINTIFF
v.
J.P. STEVENS AND COMPANY, INC., EMPLOYER, AND LIBERTY MUTUAL INSURANCE COMPANY, CARRIER, DEFENDANTS



Appeal by defendants from the North Carolina Industrial Commission. Opinion and award entered 29 January 1981. Heard in the Court of Appeals 30 march 1982.

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

Whichard

Defendants' Appeal

Defendants assign error to the findings, conclusions, and award of the full Commission, contending that plaintiff failed to prove a sufficient causal connection between his byssinosis and cotton dust exposure, and that the record contains insufficient evidence of plaintiff's total and permanent disability. We disagree.

The findings of fact made by the Commission are conclusive on appeal if supported by competent evidence in the record. Walston v. Burlington Industries, 304 N.C. 670, 677, 285 S.E.2d 822, 827 (1982); Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981); Moore v. Piedmont Processing Company, 56 N.C. 96, S.E.2d 573, 574 (1982). The conclusions of the Commission will not be disturbed if justified by the findings of fact. Inscoe v. Industries, Inc., 292 N.C. 210, 216, 232 S.E.2d 449, 452 (1977); Rutledge v. Tultex Corp., 56 N.C. App. 345, 349, 289 S.E.2d 72, 74 (1982); Moore, supra, 56 N.C. App. at 596, 289 S.E.2d at 574.

The Commission found the following: "Plaintiff was exposed to respirable cotton dust" for a total of about twelve years while working at defendant-employer's cotton mill. Plaintiff contracted byssinosis, a disease in which the airways are obstructed "due to exposure to respirable cotton dust." No extrinsic factors contributed to plaintiff's airway obstruction. The Commission concluded that "plaintiff ha[d] contracted . . . Byssinosis . . . caused by exposure to cotton dust in his employment with defendant-employer." We hold these findings fully supported by the record, and that they fully support the conclusion that plaintiff's byssinosis was caused by exposure to cotton dust.

Defendants contend the medical testimony established at most that exposure to cotton dust was one factor in causing plaintiff's disease. They argue that the requirement that the disease be caused by exposure to cotton dust "is not met by establishing that the disease condition may have been contributed to by the exposure or that such exposure, in addition to other, non-compensable causes, may have been a factor in the disease condition."

Assuming, arguendo, that cotton dust was only one of multiple causal factors, "[d]isability . . . resulting from a disease is compensable when . . . the disease . . . is aggravated or accelerated by causes and conditions characteristic of and peculiar to claimant's employment." Walston, supra, 304 N.C. at 679-80, 285 S.E.2d at 828. If the disease is not disabling apart from the aggravation by occupational conditions, "the employer must compensate the employee for the entire resulting disability." Morrison, supra, 304 N.C. at 18, 282 S.E.2d at 470. The Commission specifically found that, although plaintiff had previously had nasal polyps, "no extrinsic factors . . . contribute[d] to plaintiff's airway obstruction" and that, in any event, the polyps were not in themselves disabling. We find the causal connection between plaintiff's disease and his employment to have been sufficiently established, pursuant to the foregoing standards, to permit the Commission's conclusion of compensability.

Defendants further contend that certain medical testimony supporting causation was incompetent, in that hypotheticals posed to the medical experts did not include significant facts which would diminish the role of cotton dust as a cause of plaintiff's disease. Specifically, defendants argue that the hypotheticals failed to present plaintiff's testimony that (1) he wore a respirator for a year while working for defendant-employer, (2) synthetics were processed in some rooms he worked in, and (3) he had breathing problems before he was hired by defendant-employer.

We have examined the hypotheticals, and we find that they adequately reflect plaintiff's testimony on these points. Further, any failure to include in the hypotheticals all elements of plaintiff's testimony is not fatal. A hypothetical question need only present "sufficient facts to allow [the witness] to express an

intelligent and safe opinion." Dean v. Coan v. Coach Co., 287 N.C. 515, 521, 215 S.E.2d 89, 93 (1975). See also State Dilliard, 223 N.C. 446, 448, 27 S.E.2d 85, 87 (1943); Pigford v. R.R., 160 N.C 93, 103, 75 S.E. 860, 863 (1912). "It was not incumbent on the plaintiff to include in his [hypothetical] questions all the evidence bearing upon the fact to be proved; the defendants had the right to present other phases of the evidence in counter-hypothetical questions." Godfrey v. Power Co., 190 N.C. 24, 31, 128 S.E. 485, 490 (1925); see also State v. Stewart, 156 N.C. 636, 640, 72 S.E. 193, 194 (1911). The hypotheticals here contained "sufficient facts to allow [the witness] to express an intelligent and safe opinion." Dean, supra. Further, the record shows that defendants cross-examined the medical experts but did not pose any counter-hypotheticals which included those facts they believed significant regarding causation. We thus find no merit to this contention.

Defendants next contend there is insufficient evidence to support the Commission's findings that plaintiff "experiences chest pain and breathlessness with moderate exercise and exertion," has been "unable to work at gainful employment and has not been employed since May 30, 1979," and is "totally and permanently disabled as a result of Byssinosis." They argue that the finding that plaintiff cannot "perform ordinary activity ...


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