{
  "id": 8520758,
  "name": "JESSE T. CLARK, Employee, Plaintiff, v. BURLINGTON INDUSTRIES, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Clark v. Burlington Industries",
  "decision_date": "1980-10-21",
  "docket_number": "No. 8010IC237",
  "first_page": "269",
  "last_page": "272",
  "citations": [
    {
      "type": "official",
      "cite": "49 N.C. App. 269"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "57 S.E. 2d 760",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1950,
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      "cite": "231 N.C. 477",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "269 S.E. 2d 159",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1980,
      "opinion_index": 0
    },
    {
      "cite": "47 N.C. App. 744",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8552281
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      "year": 1980,
      "opinion_index": 0,
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    {
      "cite": "256 S.E. 2d 189",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "opinion_index": 0
    },
    {
      "cite": "297 N.C. 458",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571831
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      "year": 1979,
      "opinion_index": 0,
      "case_paths": [
        "/nc/297/0458-01"
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  "last_updated": "2023-07-14T18:45:37.060516+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Vaughn and Martin (Robert M.) concur."
    ],
    "parties": [
      "JESSE T. CLARK, Employee, Plaintiff, v. BURLINGTON INDUSTRIES, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "WEBB, Judge.\nPlaintiff bases his claim for disability benefits on G.S. 97-53(13) and G.S. 97-52. G.S. 97-52 provides that a disablement from an occupational disease under G.S. 97-53 shall be treated as an accident under the Workers\u2019 Compensation Act. G.S. 97-53(13) defines an occupational disease as:\nAny 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.\nFinding of fact number nine is sufficient to support the conclusion that plaintiffs pulmonary disease is not compensable.\nIf from a reading of the whole record the evidence supports this finding of fact, we are bound by it. Booker v. Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979) and Moore v. Stevens & Co., 47 N.C. App. 744, 269 S.E. 2d 159 (1980). We hold the whole record does support this finding of fact. Dr. Asmundsson\u2019s statement that there is no evidence of byssinosis, that \u201c[h]is bronchitis may be job related although the heavy smoking in the past must be considered a major etiologic factor\u201d and the report of Dr. Williams that there was no history of any Monday exacerbation of symptoms support this finding. The plaintiff has the burden of proving his claim is compensable. Henry v. Leather Co., 231 N.C. 477, 57 S.E. 2d 760 (1950). Although there is competent evidence to the contrary, we cannot hold that the Hearing Commissioner\u2019s finding of fact is not supported by the whole record.\nPlaintiff also assigns as error the denial of his motion for an additional panel physician examination. He contends he was entitled to such an examination under G.S. 97-27(b) which provides in part:\n(b) In those cases arising under this Article in which there is a question as to the percentage of permanent disability suffered by an employee, if any employee, required to submit to a physical examination under the provisions of subsection (a) is dissatisfied with such examination or the report thereof, he shall be entitled to have another examination by a duly qualified physician . .. designated by him and paid by the employer or the Industrial Commission\nThe order denying the plaintiffs motion held the plaintiff was examined pursuant to G.S. 97-89 which does not provide for examination by an additional physician. We do not believe it is helpful to the defendant whether he was examined pursuant to G.S. 97-27(b) or G.S. 97-89. G.S. 97-27(b) provides for an additional examination if there is a question as to the percentage of permanent disability. That is not the question in this case. G.S. 97-89 does not provide for an additional examination. This assignment of error is overruled.\nAffirmed.\nJudges Vaughn and Martin (Robert M.) concur.",
        "type": "majority",
        "author": "WEBB, Judge."
      }
    ],
    "attorneys": [
      "Hassell and Hudson, by Charles R. Hassell, Jr. for plaintiff appellant.",
      "Smith, Anderson, Blount, Dorsett, Mitchell andjernigan, by C. Ernest Simons, Jr., for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "JESSE T. CLARK, Employee, Plaintiff, v. BURLINGTON INDUSTRIES, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. 8010IC237\n(Filed 21 October 1980)\n1. Master and Servant \u00a7 68- workers\u2019 compensation - pulmonary disease not compensable\nEvidence was sufficient to support the Industrial Commission\u2019s finding that plaintiffs pulmonary disease was not compensable under the Workers\u2019 Compensation Act where one doctor stated that plaintiffs bronchitis \u201cmay be job related although the heavy smoking in the past must be considered a major etiologic factor,\u201d and another doctor stated that there was no Monday exacerbation of plaintiffs symptoms.\n2. Master and Servant \u00a7 68- workers\u2019 compensation - employee not entitled to additional physical exam\nPlaintiff, who filed a claim under the Workers\u2019 Compensation Act for an alleged occupational disease resulting from exposure to cotton dust, was not entitled to an additional panel physical examination under G.S. 97-27(b), since that statute provides for an additional examination if there is a question as to the percentage of permanent disability, but that was not the question in this case.\nAppeal by plaintiff from order of North Carolina Industrial Commission entered 1 October 1979. Heard in the Court of Appeals 11 September 1980.\nPlaintiff filed a claim under the Workers\u2019 Compensation Act for an alleged occupational disease resulting from exposure to cotton dust. Hearings were held before the Chairman of the Industrial Commission in Raleigh and before a Deputy Commissioner in Durham. The evidence showed that plaintiff was employed by Burlington Industries for approximately 37 years. He worked from 1934 until 1971 principally as a loom fixer in the weave room but \u201cpretty infrequently\u201d he also worked in the card room.\nPlaintiff testified that he was almost 62 years of age at the time of the hearing and that he had smoked a \u201cpack or a half a pack\u201d of cigarettes a day since he was \u201ca teenager.\u201d He quit for three years approximately 25 years ago \u201cbecause [he] had a spot on [his] lungs,\u201d and he \u201chad surgery as a result of that.\u201d He also testified that he first noticed he had breathing problems three or four years before he retired.\nDr. Herbert 0. Sieker, a member of the Industrial Commission\u2019s Textile Occupational Disease Panel testified, and by stipulation the Hearing Commissioner considered written reports from three other doctors. Dr. Sieker said in answer to a hypothetical question that plaintiff was disabled for work because of a chronic lung disease, and in his opinion, cotton dust was a factor contributing to his chronic obstructive lung disease. On cross-examination, he stated: \u201cit is not uncommon to find persons with the same degree of lung impairment as Mr. Clark who have not been exposed to cotton dust, who have not worked in textile mills.\u201d\nA letter from plaintiffs family physician, Dr. W.E. Adair, was introduced into evidence in which Dr. Adair stated that plaintiff was totally disabled \u201cdue to severe chronic obstructive pulmonary disease .... [Plaintiffs] history of cotton dust exposure\u201d would \u201chave to be considered as a causative factor.\u201d\nA letter dated 13 January 1972 from Dr. Tryggvi Asmunds-son of Duke University Medical Center was received in evidence. Dr. Asmundsson said plaintiff had chronic bronchitis, status post right upper lobectomy and right phrenic nerve crush for TB, peptic ulcer disease, mild hypertension, and nephrolithiasis; that plaintiff had no evidence of emphysema or classical byssinosis; and that his \u201cbronchitis may be job related although the heavy smoking in the past must be considered a major etiologic factor.\u201d\nDr. Charles D. Williams, a member of the Industrial Commission\u2019s Textile Occupational Disease Panel, examined plaintiff on 28 January 1977. His report was introduced into evidence. In it he said: \u201c[Plaintiff] gives the history of gradual onset of dyspnea on exertion which began about 3 yrs. prior to his retirement .... [Tjhere was no history of any Monday exacerbation of symptoms such as chest tightness, dyspnea, cough or wheezing.\u201d Dr. Williams listed chronic bronchitis and no evidence of byssinosis among his impressions and expressed no opinion as to whether the bronchitis was job related.\nChairman William H. Stephenson entered an opinion and award in which he found among others the following facts:\n\u201c9. Plaintiff does not have the disease byssinosis and does not suffer from any condition which has been proven to be due to causes and conditions which are characteristic of and peculiar to his particular trade, occupation, or employment.\n10. Plaintiff is not suffering from an occupational disease.\u201d\nChairman Stephenson denied compensation. The Full Commission adopted the opinion and award of Chairman Stephenson with one dissent. Plaintiff appealed.\nHassell and Hudson, by Charles R. Hassell, Jr. for plaintiff appellant.\nSmith, Anderson, Blount, Dorsett, Mitchell andjernigan, by C. Ernest Simons, Jr., for defendant appellees."
  },
  "file_name": "0269-01",
  "first_page_order": 297,
  "last_page_order": 300
}
