Hansel v. Sherman Textiles
Hansel v. Sherman Textiles
Opinion of the Court
Pursuant to Rule 16 of the Rules of Appellate Procedure, review by the Supreme Court after a determination by the Court of Appeals, is to determine whether there is error of law in the decision of the Court of Appeals.
Even though the record in the case before us may support a finding that plaintiff did not contract an occupational disease as a result of exposure to cotton dust in her employment with the defendant, if, upon review, this Court finds that the decision of the full commission in its opinion and award is supported by competent evidence, we must conclude that there is error as a matter of law in the decision of the Court of Appeals.
Under the provisions of G.S. 97-86, the Industrial Commission is the fact finding body and the rule under the uniform decisions of this Court is that the findings of fact made by the Commission are conclusive on appeal, both before the Court of Appeals and in this Court, if supported by competent evidence. This is so even though there is evidence which would support a finding to the contrary. Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E. 2d 449 (1977); Cole v. Guilford County, 259 N.C. 724, 131 S.E. 2d 308 (1963); Vause v. Equipment Co., 233 N.C. 88, 63 S.E. 2d 173 (1951); 8 Strong’s N.C. Index 3d, Master and Servant § 96, and cases there cited.
*49 In passing upon an appeal from an award of the Industrial Commission, the reviewing court is limited in its inquiry to two questions of law, namely: (1) whether or not there was any competent evidence before the Commission to support its findings of fact; and (2) whether or not the findings of fact of the Commission justify its legal conclusions and decision.
It is not the role of the Court of Appeals or of this Court to substitute its judgment for that of the finder of fact.
When the aggrieved party appeals to an appellate court from a decision of the Full Commission on the theory that the underlying findings of fact of the Full Commission are not supported by competent evidence, the appellate courts do not retry the facts. Moses v. Bartholomew, 238 N.C. 714, 78 S.E. 2d 923 (1953). It is the duty of the appellate court to determine whether, in any reasonable view of the evidence before the Commission, it is sufficient to support the critical findings necessary for a compensation award. Keller v. Electric Wiring Co., 259 N.C. 222, 130 S.E. 2d 342 (1963).
Inscoe v. Industries, Inc., 292 N.C. 210, 217, 232 S.E. 2d 449, 453 (1977).
In his dissent, Judge Wells examined the record and found substantial competent evidence to support the full Commission’s findings and conclusions. We likewise find competent evidence to support the findings of the Commission, but we are unable to say that the findings justify the Commission’s conclusion as to causation and its award. While the two-judge majority of the panel at the Court of Appeals failed to find sufficient evidence in the
For a disability to be compensable under our Workers’ Compensation Act, it must be either the result of an accident arising out of and in the course of employment or an “occupational disease.”
G.S. 97-52 provides in effect that disablement of an employee resulting from an “occupational disease” described in G.S. 97-53 shall be treated as the happening of an injury by accident. This section provides specifically:
The word ‘accident’ . . . shall not be construed to mean a series of events in employment of a similar or like nature occurring regularly, continuously . . . whether such events may or may not be attributable to the fault of the employer and disease attributable to such causes shall be compensable only if culminating in an occupational disease mentioned in and compensable under this article. (Emphasis added.)
G.S. 97-53 contains the comprehensive list of occupational diseases for which compensation is provided in the Act.
By the express language of G.S. 97-53, only the diseases and conditions enumerated therein shall be deemed to be occupational diseases within the meaning of the Act.
Byssinosis is not “mentioned in and compensable under” the Act, except by virtue of G.S. 97-53, which provides in pertinent part as follows:
Section 97-53. Occupational diseases enumerated; . . . the following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this Article:
(13) Any disease . . . which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all or*52 dinary diseases of life to which the general public is equally exposed outside of the employment.
In Booker v. Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979), Chief Justice Sharp exhaustively examined the true meaning of the term “occupational disease” as that term is used in our Workers’ Compensation Act. It is unnecessary for us to repeat the results of that examination here. The clear language of G.S. 97-53 is that for any disease, other than those specifically named, to be deemed an “occupational disease” within the meaning of the Article, it must be “proven to be due to,” causes and conditions as specified in that statute. This Court held in Booker that there are three elements necessary to prove the existence of a compensable “occupational disease”: (1) the disease must be characteristic of a trade or occupation, (2) the disease is not an ordinary disease of life to which the public is equally exposed outside of the employment, and (3) there must be proof of causation, ie., proof of a causal connection between the disease and the employment. Id. at 468, 475, 256 S.E. 2d at 196, 200.
With regard to the third element, this Court further said in Booker:
It is this limitation which protects our Workmen’s Compensation Act from being converted into a general health and insurance benefit act. Bryan v. Church, 267 N.C. 111, 115, 147 S.E. 2d 633, 635 (1966). In Duncan v. Charlotte, 234 N.C. 86, 91, 66 S.E. 2d 22, 25 (1951) we held that the addition of G.S. 97-53 to the Act ‘in nowise relaxed the fundamental principle which requires proof of causal relation between injury and employment. And nonetheless [sic], since the adoption of the amendment, may an award for an occupational disease be sanctioned unless it be shown that the disease was incident to or the result of the particular employment in which the workman was engaged.’
297 N.C. at 475, 256 S.E. 2d at 200.
In workers’ compensation actions the rule of causation is that where the right to recover is based on injury by accident, the employment need not be the sole causative force to render an injury compensable.
*53 [If the employee] by reason of constitutional infirmaties is predisposed to sustain injuries while engaged in labor, nevertheless the leniency and humanity of the law permit him to recover compensation if the physical aspects of the employment contribute in some reasonable degree to bring about or intensify the condition which renders him susceptible to such accident and consequent injury.
Vause v. Equipment Co., 233 N.C. 88, 92, 63 S.E. 2d 173, 176 (1951).
It has on occasion been implied that a similar rule of causation should prevail in cases where compensation for occupational disease is sought; however, if a disease is produced by some extrinsic or independent agency, it may not be imputed to the occupation or the employment. Duncan v. Charlotte, 234 N.C. 86, 66 S.E. 2d 22 (1951); Moore v. Stevens & Co., 47 N.C. App. 744, 748, 269 S.E. 2d 159, 162 (1980).
It is axiomatic that neither Mrs. Hansel’s asthma nor her chronic bronchitis is an “occupational disease” which standing alone is compensable under the Workers’ Compensation Act, nor does either party make such a contention. The questions of aggravation or acceleration of these diseases or infirmities was not considered by Deputy Commissioner Denson or the full Commission, nor was it addressed in the evidence. We believe that it should have been. In cases in which a claimant has other infirmities related solely to the lungs or respiratory system, the Commission should, as a matter of course, consider whether claimant’s disablement (i.e. inability to work and earn wages) results from aggravation of those other non-occupational diseases or infirmities by causes and conditions peculiar to claimant’s employment.
If there is no aggravation or acceleration, a disease or condition which is non-occupational in its incipience, is non-compensable as a matter of law notwithstanding the intervention of years of occupational exposure to hazardous conditions between the time the disease was contracted and the time it became disabling. If however a disease or condition which is non-occupational in its incipience is in fact aggravated or accelerated by causes and conditions peculiar to the claimant’s employment, disability resulting therefrom is compensable.
In the case before us in which the Commission made an award of compensation, there was not sufficient determination by the finders of fact, and certainly no explicit findings, upon which this Court can determine the sufficiency of the evidence to support the Commission’s findings and conclusion. It is explicitly stated in the Commission’s finding number 5 that plaintiff’s byssinosis “is partly responsible for her disability” and thus implicit that some other disease or infirmity is likewise “partly responsible for her disability.” The evidence indicates that the other disease or infirmity is probably asthma and chronic bronchitis, although plaintiff also testified that two other doctors told her previously that she had emphysema. It also appears from the evidence that she is apparently also allergic to, among other things, dust, mold, mildew, trees, grass, animals, feathers, cotton dust, nylon dust and polyester dust. Because of the presence of these other infirmities and because this is a case of partial disability as opposed to one of total disability, it must be determined what percentage of claimant’s disability is due to her oc
The medical evidence appearing in the record before this Court is not sufficiently definite on the cause of plaintiffs disability to permit effective appellate review. The only medical witness before the Commission, Dr. Harris, did not address the crucial medical question of interrelationship, if any, between plaintiffs occupational disease and her disability.
We deem it unnecessary to recite or recapitulate the evidence which is fairly summarized in the opinion and dissent in the Court of Appeals. However, solely for the purpose of illustrating the problems in assessing the medical evidence before us on causation, we will set forth only a part of plaintiffs evidence as it relates to the element of causation. Dr. T. Reginald Harris testified in part:
She has an illness. In general terms, I thought it fitted the pattern of chronic obstructive lung disease .... She has three distinct syndromes that probably contributes (sic) to that impairment. These are asthma, byssinosis and chronic bronchitis.
If she did not work in cotton, I would not have any diagnosis of byssinosis.
There is a possibility that she has byssinosis and she certainly could have. . . . The answer is yes, could or might.
Q. ... Do you have an opinion satisfactory to yourself to a reasonable degree of medical certainty that the condition suffered by Pauline Hansel could or might be byssinosis? . . .
A. My answer is yes, it could or might be byssinosis.
A. To amplify, I have difficulty in this patient for several reasons, to answer so specific a question. One of the difficulties, I’m not really aware of how much cotton dust ex*56 posure this lady was involved. Your hypothetical question assumed considerable amounts of cotton dust exposure. That’s why the history obtained by me is not specific enough for me to be able to evaluate over her employment, and the other problem she worked in the weaving department where there is much less dust than some of the other departments. If there was a lot of other fibers in the cotton in that department, there would be less exposure. That is one factor that would tend to add weight or less weight to consider the diagnosis. And the major difficulty is the diagnosis of asthma. I believe this lady has asthma and every person with asthma will react to cotton dust. If they have severe asthma they are not able to stay there. The milder cases, they can work in less dusty areas of the plant. So the diagnosis is more complex because this lady could have many of these same symptoms whether she worked around cotton dust because of the present asthma. She also has a history of chronic bronchitis symptoms of coughing day and night. Probably one of the major facts in her case is cigarette smoking as recorded by me. Could or might is true. I think that the possibility exists that both of the conditions are certainly present. It would be less complicated if she didn’t have other problems, but she does have.
Yes sir, I did say I had some difficulty in arriving at a diagnosis in this case due to the other conditions that I found that existed in this lady. I suspect the biggest difficulty was the history of asthma because the presence of asthma would lead you to anticipate as individuals would react with symptoms when they go to a textile plant. Because asthmatics react to all manners of dust. I said the symptoms of coughing, tightness of the chest could result or could be caused by the asthmatic condition rather than the breathing of dust. Yes, in the history that she gave me, she stated that she had a cough, or a dry hacking cough, as much as 30 years ago.
That fact that she had chronic bronchitis since 1948 or 1950 indicated to me that she had chronic lung disease and probably chronic bronchitis, that is a proper term for that, as*57 long as that period of time. Let me tell you what my opinion was at the time of my examination and history and I think still is. This lady has chronic bronchitis and this lady likely and probably has asthma. There is a possibility that she could have a reaction known as byssinosis syndrome, but I am not able to determine the extent of that condition nor add much weight to its presence, because I do not have the ability to separate out any specific symptoms related to byssinosis that this lady has that cannot be explained by the other two conditions that are present. It is more difficult, also, because I do not know what her work exposure, history to cotton dust, is here.
It’s true, that the asthmatic condition and the other, chronic bronchitis, could be the cause of this lady’s condition that I found upon examination, as well as the other findings, the syndrome findings that I made.
People who have byssinosis for many years, have a lung disease that is indistinguishable from chronic bronchitis.
The following is excerpted from Dr. Harris’s medical report of his examination of Mrs. Hansel on 10 August 1978 which was admitted into evidence as Exhibit “A”:
Comment:
This patient has a lengthy history of obstructive pulmonary disease. She is a cigarette smoker and has had considerable textile work exposure. I do not have information which describes her dust exposure over the years. She has had considerable exposure to textile environment but this has been in the weaving department where traditionally, there has been less dust than in the earlier stages of processing cotton in a textile plant. This patient has a history suggesting chronic bronchitis with cough and sputum production. She also has a history of increased symptoms upon work exposure and has a typical history of increased symptoms on the first day of the work week after a work absence. The history she gives is similar to that of patients with byssinosis*58 and patients with chronic bronchitis. The picture is somewhat complicated by a history suggesting asthma and allegery in the past and by the history of vocal cord abnormalities.
On the basis of the information available to me, this patient may well have three identifiable problems causing lung disease. She has a history compatible with and suggesting asthma. She is believed to have chronic bronchitis and to have byssinosis. The later diagnosis is made on the basis of chronic obstructive lung disease in a patient with a typical work history of byssinosis and presumably has had exposure to cotton textile dust over long enough time to permit development of this syndrome. It is true, however, that patients with asthma also react to cotton dust and have increased symptoms upon exposure —similar to those with the syndrome of byssinosis. Cigarette smoking is certainly a major contributing factor to chronic bronchitis. It is not possible to quantitate the relative contribution of the various etiological factors in her present respiratory impairment. It is likely that all are involved to some extent. It is this examiners belief that the patient probably has asthma and that she does have chronic bronchitis as well as byssinosis.
Diagnostic Conclusion:
1) Chronic Obstruction air ways disease.
Asthma, probable.
Byssinosis syndrome.
Chronic bronchitis.
In order for the Court to determine whether the Commission’s findings and conclusions are supported by competent evidence, the record before us must be supplemented by medical testimony to indicate answers to the following questions:
(1) Is plaintiff totally or partially incapacitated to work and earn wages? If partial, to what extent is she disabled; ie., what is the percentage of her disability?
(2) What disease or diseases caused this disability?
*59 (3) Which of the plaintiffs disabling diseases are occupational in origin, ie., which diseases are due to causes and conditions which are characteristic of and peculiar to plaintiffs occupation as distinguished from ordinary diseases of life , to which the general public is equally exposed outside of the employment?
(4) Does plaintiff suffer from a disabling disease or infirmity which is not occupational in origin, ie., which is not due to causes and conditions characteristic of and peculiar to plaintiffs occupation as distinguished from ordinary diseases of life to which the general public is equally exposed outside of the employment?
If so, specify the non-occupational disease(s) or infirmities?
(5) Was plaintiffs non-occupational disease(s) or infirmity aggravated or accelerated by her occupational disease(s)?
(6) What percentage of plaintiffs incapacity to work and earn wages results from (a) her occupational disease(s) or (b) her nonoccupational disease(s) which were aggravated or accelerated by her occupational disease(s)?
(7) What percentage of plaintiffs incapacity to work and earn wages results from diseases or infirmities which are nonoccupational in origin?
We conclude that the Court of Appeals acted prematurely in vacating the award of the full Commission. In our discretion, we remand for further findings of fact.
The Industrial Commission must make specific findings of fact as to each material fact upon which the rights of the parties in a case involving a claim for compensation depend. Wood v. Stevens & Co., 297 N.C. 636, 256 S.E. 2d 692 (1979); Thomason v. Cab Co., 235 N.C. 602, 70 S.E. 2d 706 (1952). If the findings of fact of the Commission are insufficient to enable the court to determine the rights of the parties upon the matters in controversy, the cause must be remanded to the Commission for proper findings of fact. Young v. Whitehall Co., 229 N.C. 360, 49 S.E. 2d 797 (1948); Moore v. Stevens & Co., 47 N.C. App. 744, 749, 269 S.E. 2d 159, 162 (1980); Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 235 S.E. 2d 856 (1977). See also 1 Strong’s N.C. Index 3d, Appeal and Error § 57.3.
For the reasons stated, the decision of the Court of Appeals is reversed and the case is remanded to the Court of Appeals with directions that it be remanded to the North Carolina Industrial Commission for further proceedings consistent with this opinion.
Reversed and remanded.
Concurring Opinion
concurring in result.
I concur in the majority’s decision to remand this case to the Industrial Commission for further proceedings. Since I disagree with much of the majority’s reasoning, I deem it necessary to set out my own views of the case.
First, I disagree with the majority’s apparent notions that Hansel’s occupational disease is simply byssinosis and that she is limited on remand to showing only that her exposure to cotton dust medically aggravated her bronchitis or asthma in order to recover for whatever incapacity for work was caused by the combined effect of all of her pulmonary problems.
As I understand the medical testimony, Hansel actually suffers from chronic obstructive pulmonary, or lung, disease to which several etiological factors could have contributed, ie., cigarette smoking, bronchitis, asthma, and cotton dust exposure. Dr. Harris testified that Mrs. Hansel “has an illness. In general terms, I thought it fitted the pattern of chronic obstructive lung disease .... She has three distinct syndromes that probably contributes [sic] to that impairment. These are asthma, byssinosis, and chronic bronchitis.” Later Dr. Harris also identified cigarette smoking as a possible contributing factor.
Although Morrison claimed benefits for “an occupational disease, to wit: byssinosis . . . caused by exposure to cotton dust,” the medical testimony, the Commission’s findings, and this Court identified her occupational disease as chronic obstructive lung disease. Morrison also suffered from bronchitis, was a cigarette smoker, and could have had emphysema. The Commission found ultimately, however, that her chronic obstructive lung disease was caused at least in part by her cotton dust exposure, a finding which this Court concluded was supported by the evidence.
Walston also claimed benefits for “byssinosis . . . caused by exposure to cotton dust.” The medical testimony again, however, referred to the cause of Walston’s incapacity for work as “pulmonary disease” and “pulmonary problems.” The medical testimony identified the components of his pulmonary disease as “chronic bronchitis, pulmonary emphysema, [and] possible byssinosis.” Dr. Mabe testified, “It is correct as a matter of terminology, to regard the term ‘chronic obstructive lung disease’ as broader in its complications than, say, fibrosis, which can be a localized situation, or emphysema, which can only be general. Chronic obstructive lung disease is the broadest of these terms. It will take them all in. That encompasses all of them in the chronic bronchitis or segmental pulmonary fibrosis.”
It is clear from the medical testimony in Morrison, Walston and this case, and from medical literature on the subject
I further disagree with the majority’s position that questions three and four can be answered by medical witnesses, for these questions are really conclusions of law to be made by the Commission after it determines certain preliminary factual questions. Whether a particular disease is an occupational disease is ultimately a question of law, for it requires the application of the legal standards set out in G.S. 97-53(13) to the facts. In an occupational disease claim, “[h]aving made appropriate findings of fact, the next question the Commission must answer is whether . . . the illness plaintiff has contracted falls within the definition set out in the statute. This latter judgment requires a conclusion of law.” Wood v. Stevens & Co., supra, 297 N.C. at 640, 256 S.E. 2d at 695-96.
For a disease to be occupational and therefore compensable under G.S. 97-53(13) “two conditions must be met: (1) It must be ‘proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment’; and (2) It cannot be an ‘ordinary disease of life to which the general public is equally exposed outside of the employment.’ ” Booker v. Medical Center, 297 N.C. 458, 468, 256 S.E. 2d 189, 196 (1979). If there is a greater risk of contracting the disease by workers in a given occupation because of conditions “characteristic of and peculiar” to the occupation, the “nexus between the disease and the employment which” makes the disease occupational and therefore compensable is provided and the sec
As the majority correctly notes, however, it is not necessary that the occupational “causes and conditions” be the sole cause of the disease. It is enough if these occupational “causes and conditions” are factors which significantly contribute to the development of the disease.
Whether the contribution of occupational “causes and conditions” has been significant or insignificant must largely be determined by evidence relating to the extent and nature of the exposure to the occupational conditions and expert medical opinion relating to the significance of this exposure in light of other factors which may also have contributed to the disease’s development. Significant means, “having or likely to have influence or effect: deserving to be considered: IMPOBTANT, WEIGHTY, NOTABLE.” Webster’s Third New International Dictionary 2116 (Merriam-Webster 1971). “Significant” as we are using it is to be
To say that occupational causes and conditions must be the sole cause of a disease before it can be considered occupational and therefore compensable is too harsh a principle from the standpoint of the purposes and policies of our Workers’ Compensation Act. This Act “should be liberally construed so that the benefits under the Act will not be denied by narrow, technical or strict interpretation.” Stevenson v. City of Durham, 281 N.C. 300, 303, 188 S.E. 2d 281, 283 (1972).
To say on the other hand that if occupational causes and conditions contribute to the slightest extent, however miniscule or insignificant, to the etiology of a disease, the causation requirement is satisfied places too heavy a burden on industry and tends to compromise the valid principle that our Workers’ Compensation Act should not be transformed into a general accident and health insurance law.
Neither should a disease to which occupational conditions have significantly but not entirely contributed be considered as some kind of pro tanto occupational disease in which an award is made not for the incapacity for work actually caused by the disease but only for so much of such incapacity as corresponds mathematically to the extent of contribution of the occupational conditions. First, the cases in which the point has been considered do not support this view. They either support the significant contribution principle or some less rigorous principle from the worker’s standpoint.
Thus in addressing this industrial disease claim I would require the Commission to consider and resolve several crucial factual issues. The first is whether the employee has a disease and, if so, what is it. “The Commission must determine first the nature of the disease from which the plaintiff is suffering — that is, its characteristics, symptoms and manifestations.” Wood v. Stevens & Co., supra, 297 N.C. at 640, 256 S.E. 2d at 695. Second, the Commission must determine whether any causes and conditions ‘characteristic of and peculiar to’ the occupation in question significantly contributed to, or were significant causative factors in, the disease’s development. Finally, the Commission must determine whether the disease is an ordinary disease of life to which the general public is exposed in the same degree as the worker in question or, in other words, whether the worker is, because of his occupation, exposed to a greater risk of contracting the disease than members of the public generally.
If all of these crucial factual issues are answered favorably to the worker, then the Commission must conclude as a matter of law that the worker has an occupational disease. If any one of them, however, is answered unfavorably to the worker, then the Commission must conclude as a matter of law that there is no occupational disease.
I recognize that we are dealing with a relatively new occupational disease statute which reasonably has been the source of some confusion regarding occupational disease law in this state. This confusion is compounded by the medical complexities involved in chronic lung disease cases. “The causes and development of byssinosis, and the structural and functional changes produced by the disease, are still the subject of scientific debate.” Wood v. Stevens & Co., supra, 297 N.C. at 641, 256 S.E. 2d at 696. A recent carefully controlled study cited in Wood concluded, however, that although the “pathology of the chronic lung disease of textile workers remains unclear,” textile workers, “not only . . . carders and spinners . . . but also . . . yarn preparers and weavers . . .” suffer from “an excess of chronic lung disease” and it “is almost
In view, therefore, of the legal and medical complexities involved, we should remand this matter to the Commission for the taking of further evidence and a new determination of whether Hansel has an occupational disease. I believe there is enough evidence already adduced to indicate that Hansel may be able to prove that her cotton dust exposure significantly contributed to her ultimate chronic obstructive lung disease and that it was this lung disease which ultimately caused her to be incapacitated for work, either partially or totally. I, however, would direct the Commission to proceed in accordance with the principles to which I have referred in this concurring opinion rather than those announced by the majority.
. See generally Bouhuys, Schoenberg, Beck and Schilling, Epidemiology of Chronic Lung Disease in a Cotton Mill Community, 5 Traumatic Medicine and Surgery for the Attorney 607, reprinted from Lung — An International Journal on Lungs, Airways, and Breathing, 154(3): 167-186 (1977). The article concludes with the following paragraph:
“There is continuing discussion about the definition of the term ‘byssinosis,’ and confusion about the presumed co-existence of chronic bronchitis and of
. This is also the term used throughout the Bouhuys article to describe the disabling condition in its ultimate form. Id.
. In Walston, for example, Dr. Williams testified, “There is not specifically any objective finding to say that a man does or doesn’t have byssinosis . . . such as a biopsy or autopsy, such as with silicosis and asbestosis, although in the early stages one can demonstrate a reactivity to the dust by doing pulmonary function studies before and after six hours exposure to the work environment. But in the latter stages, such as one might see with chronic obstructive pulmonary disease, this is no longer valid and these are not specific diagnostic criteria.”
In Morrison, Dr. Sieker testified that there were “two identifiable etiological factors” which contributed to Morrison’s chronic obstructive lung disease. “One is cotton dust exposure, the other is her cigarette consumption.” He said, “[I]n a somewhat arbitrary way but with clinical judgment I assign the etiological factors about 50 percent — 50 to 60 percent for the cotton dust exposure and 40-50 percent for the cigarette smoking and any attendant problems with that. ... At the present time there is no laboratory type of test that would do this. This [assignment of
In the present case Dr. Harris testified that the effects of byssinosis were “indistinguishable from chronic bronchitis.”
. The disease need not be one which originates exclusively from or is unique to the particular occupation in question. Booker v. Medical Center, supra. Nor is the fact that the disease is an ordinary disease of life to which members of the general public also succumb fatal to an occupational disease claim if the "greater risk” nexus is present; for in such cases the public is not exposed to the disease equally with those engaged in the particular employment in question. Id. Thus ordinary diseases of life such as serum hepatitis, tuberculosis and contact dermatitis may be occupational diseases provided that the employee because of his employment has a greater risk of contracting them than does the public generally. Id., and cases cited therein.
. For a full discussion of the significant contribution concept and the authorities upon which it is based see Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E. 2d 458 (1981) (Exum, J., dissenting).
. These cases are collected in my dissent in Morrison v. Burlington Industries, supra.
. These cases are collected in my dissent in Morrison v. Burlington Industries, supra.
. Dr. Harris, for example, testified, “I do not have the ability to separate out any specific symptoms related to byssinosis that this lady has that cannot be explained by the other two conditions that are present.” In his medical report he stated, “It is not possible to quantitate the relative contribution of the various etiological factors in her present respiratory impairment. It is likely that all are involved to some extent.” In Walston v. Burlington Industries, supra, Dr. Williams was unable to testify regarding the relative contributions to Walston’s lung disease made, respectively, by his exposure to cotton dust and his cigarette smoking. He said, “I find it very difficult to answer the question as to . . . what percentage would the cotton dust exposure represent to the pulmonary condition. On the one hand, we have had the opportunity to treat hundreds of patients with this same type of syndrome and findings, in which case it is almost certain the primary etiological agent was cigarette smoking, and this fellow was a smoker. On the other hand, there are figures beginning to emerge to show that it is possible for workers exposed to cotton dust to develop chronic obstructive lung disease even in some instances in non-smokers even though the incident is definitely greater in smokers which accounts for the reason I said it might be a contributory factor, but this is about as close as I can come. I cannot give a percentage. I don’t have an opinion on a specific percentage.”
Although in Morrison, Dr. Sieker did testify to the relative contribution of cigarette smoking and cotton dust exposure in terms of percentages, he conceded that this assessment was made “in a somewhat arbitrary way but with clinical judgment . . . there is no laboratory . . . test that would do this . . . .”
. Bouhuys, Schoenberg, Beck and Schilling, op. cit., supra n. 1. See also IB Larson, supra, § 41.64(b), n. 83.1.
Reference
- Full Case Name
- PAULINE C. HANSEL, Employee-Plaintiff v. SHERMAN TEXTILES, Employer, TRAVELERS INSURANCE COMPANY, Carrier-Defendants
- Cited By
- 249 cases
- Status
- Published