Fann v. Burlington Industries

ARNOLD, Judge. Plaintiff’s first assignment of error is that the Industrial Commission erred in finding that her claim is not compensable. In general, the rule is that findings of fact made by the Commission are conclusive on appeal when supported by competent evidence, even when there is evidence to support contrary findings of fact. Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E. 2d 458 (1981). G.S. 97-53 lists the occupational diseases which are compensable. Section 13 provides: [515] Any disease, other than hearing loss covered in another subdivision of this section, 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 ordinary diseases of life to which the general public is equally exposed outside of the employment. For an occupational disease to be compensable under G.S. 97-53(13), two conditions must be met: It must be due to causes and conditions characteristic and peculiar to the employment; and the particular employment conditions must place the worker at greater risk than the general public of contracting the disease. Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979). This rule was fully explained in Morrison v. Burlington Industries, 304 N.C. 1, 18, 282 S.E. 2d 458, 470 (1981): (1) [A]n employer takes the employee as he finds her with all her pre-existing infirmities and weaknesses. (2) When a pre-existing, nondisabling, non-job-related condition is aggravated or accelerated by an accidental injury arising out of and in the course of employment or by an occupational disease so that disability results, then the employer must compensate the employee for the entire resulting disability even though it would not have disabled a normal person to that extent. (3) On the other hand, when a pre-existing, non-disabling, non-job-related disease or infirmity eventually causes an incapacity for work without any aggravation or acceleration of it by a compensable accident or by an occupational disease, the resulting incapacity so caused is not compensable. (4) When a claimant becomes incapacitated for work and part of that incapacity is caused, accelerated or aggravated by an occupational disease and the remainder of that incapacity for work is not caused, accelerated or aggravated by an occupational disease, the Workers’ Compensation Act of North Carolina requires compensation only for that portion of the disability caused, accelerated or aggravated by the occupational disease. In this case, there was medical evidence tending to show that plaintiffs work environment did not cause or exacerbate her condition. According to the medical report: [516] Although it is certainly possible that exposure to dusty environmental conditions of any sort could exacerbate this problem once it has developed, I am not aware of evidence which could link her work environment to the development of this condition. In addition, the history given by Mrs. Fann suggests that she was working with synthetic fabrics during most of the time she was employed in Fayetteville although apparently cotton blends were also produced. It was only during the IV2 years that she was at the Erwin Mill that she was working exclusively with cotton. Therefore the intensity and duration of her exposure to cotton dust is not clear. . . . Therefore Mrs. Fann does not exhibit objective evidence of the obstructive pulmonary impairment which is usually associated with cotton dust related obstructive lung disease or byssinosis. In conclusion it is my opinion that Mrs. Fann does not have pulmonary disease or impairment which can be related to her occupation. This evidence clearly supports the Commissioner’s finding of fact that plaintiffs disease is not compensable. Plaintiffs second assignment of error is that the Commission erred in finding that she was not disabled. We find that the evidence supported this finding. On cross-examination, the medical doctor said: The bronchiectasis, I feel like this plays a limitation on the type of environment she should work but beyond that she could perform any type of work. I think she should try to avoid heavy dust or smoke exposure or things like this. I don’t know that she would need to maintain the same type of very strict dust precautions, for instance, of a person who was allergic to house dust. I’m thinking about heavy concentration of airborne dust or smoke, other types of fumes, adverse cold, damp weather, things of this type. She shouldn’t be a fire fighter or something like that. For the reasons stated, we affirm the finding of the Industrial Commission. Affirmed. Judges Wells and Hill concur.