{
  "id": 8556131,
  "name": "BEN W. SMITH, Employee-Plaintiff v. MEMORIAL MISSION HOSPITAL, Employer-Defendant and EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Carrier-Defendant",
  "name_abbreviation": "Smith v. Memorial Mission Hospital",
  "decision_date": "1974-05-01",
  "docket_number": "No. 7428IC55",
  "first_page": "380",
  "last_page": "384",
  "citations": [
    {
      "type": "official",
      "cite": "21 N.C. App. 380"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "204 S.E. 2d 543",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "opinion_index": 0
    },
    {
      "cite": "21 N.C. App. 299",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555712
      ],
      "year": 1974,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/21/0299-01"
      ]
    },
    {
      "cite": "138 S.E. 2d 541",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1964,
      "opinion_index": 0
    },
    {
      "cite": "262 N.C. 663",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8570996
      ],
      "year": 1964,
      "opinion_index": 0,
      "case_paths": [
        "/nc/262/0663-01"
      ]
    },
    {
      "cite": "183 S.E. 2d 827",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "12 N.C. App. 499",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550644
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/12/0499-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 490,
    "char_count": 8667,
    "ocr_confidence": 0.603,
    "pagerank": {
      "raw": 7.01948500860457e-08,
      "percentile": 0.42380076985183307
    },
    "sha256": "295f9c08ed939a1a3c5529b8616b90e55823871c368fbab44ff8235f9e9c5f38",
    "simhash": "1:08a33f68aba66cc3",
    "word_count": 1385
  },
  "last_updated": "2023-07-14T21:32:29.924632+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "BEN W. SMITH, Employee-Plaintiff v. MEMORIAL MISSION HOSPITAL, Employer-Defendant and EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Carrier-Defendant"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nDefendants contend that the award of the Industrial Commission is not supported by competent evidence and is contrary to law. Defendants\u2019 position is well taken.\nPlaintiff\u2019s father testified that he was Chief Engineer for the Memorial Mission Hospital, that he was familiar with the method of unstopping a commode with an \u201celectric eel,\u201d that the mechanic must run his hands down through a pipe which is extremely coarse, and that the mechanic must \u201cdamage his hands\u201d \u2014 \u201cYou are striking your knuckles.\u201d There was no evidence whatever either from this witness or from plaintiff himself that he did in any way damage his hands or sustain any type of cut or abrasion. Counsel for plaintiff was allowed, over objection, to ask Dr. Woodard Farmer who treated plaintiff, the following question:\n\u201cNow, doctor, if the Commission should find that he did work in a sewer, cleaning out a sewer, and received cuts on his hands, do you have an opinion satisfactory to yourself as to whether or not this infectious hepatitis might or could have come from his work on the sewer line ?\u201d\nDr. Farmer answered: \u201cI think it is technically possible to receive a case of hepatitis by being associated with the connection of a toilet.\u201d (Emphasis supplied.)\nPlaintiff\u2019s counsel was allowed, over objection, to ask Dr. John A. McLeod, a specialist in pathology, the following question:\n\u201cIf the Commission should find that these two men had worked on a commode in sewage transmittal, that is a sewer line in the hospital, and received some cuts and injuries from their work there on this sewage line, do you have an opinion satisfactory to yourself as to whether they might or could have contacted and become infected with this hepatitis as a result of this work?\u201d\nDr. McLeod also answered that \u201cit is entirely possible . . .\u201d (Emphasis supplied.)\nAssuming, arguendo, that the hypothetical questions asked of the expert witnesses assumed only facts which were established by the evidence either directly or by fair and necessary implication, Blalock v. Roberts Co., 12 N.C. App. 499, 183 S.E. 2d 827 (1971), it is the rule in this jurisdiction that a hypothetical question should ask the expert witness whether \u201ca particular condition could or might have produced the result in question ...\u201d 3 Strong, N. C. Index 2d, Evidence, \u00a7 50, and cases there cited. Counsel followed this rule. However, the \u201ccould\u201d or \u201cmight\u201d refers to probability and not mere possibility. Lockwood v. McCaskill, 262 N.C. 663, 138 S.E. 2d 541 (1964). The expert\u2019s opinion should be based on the reasonable probabilities known to him from scientific learning and experience. In the case before us, both experts, in their response to the hypothetical question, expressed a mere possibility. That this is not sufficient is indicated by Justice Moore in Lockwood v. McCaskill, supra, at 668 and 669, where he said:\n\u201cThe expert may express the opinion that a particular cause \u2018could\u2019 or \u2018might\u2019 have produced the result \u2014 indicating that the result is capable of proceeding from the particular cause as a scientific fact, i.e., reasonable probability in the particular scientific field. If it is not reasonably probable, as a scientific fact, that a particular effect is capable of production by a given cause, and the witness so indicates, the evidence is not sufficient to establish prima facie the causal relation, and if the testimony is offered by the party having the burden of showing the causal relation, the testimony, upon objection, should not be admitted and, if admitted, should be stricken.\u201d\nThis assignment of error is sustained.\nDefendants also assign as error that the crucial findings of fact were not supported by competent evidence and the conclusions of law, therefore, were erroneous. With this position, we also agree.\nIn finding of fact No. 3, the Commission found as a fact that \u201c[i]n the opinion of Dr. McLeod, both Smith and Morrow had infectious hepatitis.\u201d The record reveals that Dr. McLeod testified: \u201cI do not know what kind of hepatitis Mr. Smith had.\u201d This finding of fact also stated: \u201cDr. McLeod was of the opinion that the plaintiff could or might have contacted hepatitis through having his hands in commodes as heretofore set out.\u201d As we have already pointed out, Dr. McLeod\u2019s answer was not \u201ccould or might have\u201d but only a mere possibility.\nThe Commission, upon the findings of fact, concluded that \u201c[w]hile performing the duties of his employment on or about February 11, 1971, or February 18, 1971, the plaintiff became infected with an occupational disease, to wit: Infectious hepatitis\u201d and \u201c[a]s a result of said occupational disease, the plaintiff was temporarily totally disabled from March 13, 1971, through April 23, 1971, both dates inclusive.\u201d (Emphasis supplied.)\nG.S. 97-53 provides:\n\u201cThe following diseases and conditions only shall be deemed to be occupational diseases within the meaning of this Article:\u201d (Emphasis supplied.)\nInfectious hepatitis is not listed. G.S. 97-53(13) provides:\n\u201cAny 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.\u201d\nIf plaintiff is entitled to an award for infectious hepatitis, assuming the findings are supported by competent evidence and support the conclusions of law, the recovery must be based upon the provisions of the above-quoted provisions. We are in accord with the conclusion reached by Judge Brock in the companion case, Morrow v. Hospital, 21 N.C. App. 299, 204 S.E. 2d 543 (1974), that \u201cevidence presented in this case is insufficient to show that infectious hepatitis is a disease which is characteristic of and peculiar to the occupation of' (maintenance mechanic helper) acting, sometimes as a plumber, in the course of his employment for a hospital.\u201d The conclusions of law that infectious hepatitis is an occupational disease and that plaintiff was disabled as the result of contracting infectious hepatitis \u201cwhile performing the duties of his employment,\u201d must be vacated.\nOn the record before us, the award must be vacated and the cause remanded to the Industrial Commission for entry of an award denying compensation.\nRemanded.\nJudges Campbell and Vaughn concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "No appearance for plaintiff appellee.",
      "Hedrick, McKnight, Parham, Helms and Kellam, by Edward L. Eatman, Jr., for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "BEN W. SMITH, Employee-Plaintiff v. MEMORIAL MISSION HOSPITAL, Employer-Defendant and EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Carrier-Defendant\nNo. 7428IC55\n(Filed 1 May 1974)\n1. Master and Servant \u00a7 56\u2014 infectious hepatitis \u2014 unstopping commode \u2014\u25a0 causal relationship\nThe evidence was insufficient to support a finding that plaintiff hospital employee contracted infectious hepatitis while unstopping a commode in the hospital.\n2. Master and Servant \u00a7 68\u2014 infectious hepatitis \u2014 hospital employee \u2014 occupational disease\nThe conclusions of law that infectious hepatitis is an occupational disease and that plaintiff was disabled as the result of contracting infectious hepatitis while performing the duties of his employment are not supported by sufficient evidence and must be vacated.\nAppeal by defendants from opinion and award of the North Carolina Industrial Commission dated 7 August 1973. Argued in the Court of Appeals 19 March 1974.\nPlaintiff, an employee of Memorial Mission Hospital as a maintenance mechanic helper, assisted a fellow employee in unstopping a commode in one of the hospital rooms of Memorial Mission Hospital. Plaintiff and his co-worker used an \u201celectric eel\u201d in the process of unstopping the commode. An \u201celectric eel\u201d is a flexible metal cable with one end affixed to an electrical motor. When the motor is engaged, the flexible cable is turned so that the loose ends of the cable burrow into the debris plugging the passageway sought to be unplugged. This work was being done during the second or third week of February, 1971. In early March, plaintiff became ill and his illness was diagnosed as hepatitis. His co-worker also became ill with the same disease. Each filed a claim contending entitlement to compensation and medical benefits under the North Carolina Workmen\u2019s Compensation Act by reason of the benefits provided by G.S. 97-53 (13), claiming that the hepatitis he contracted is an occupational disease.\nAfter hearing, an award was made by Deputy Commissioner Leake. On appeal to the full Commission, his award was affirmed.\nDefendants appealed.\nNo appearance for plaintiff appellee.\nHedrick, McKnight, Parham, Helms and Kellam, by Edward L. Eatman, Jr., for defendant appellants."
  },
  "file_name": "0380-01",
  "first_page_order": 408,
  "last_page_order": 412
}