{ "id": 8522798, "name": "MAE GOODMAN v. LINN-CORRIHER CORPORATION, Self-Insured", "name_abbreviation": "Goodman v. Linn-Corriher Corp.", "decision_date": "1981-09-01", "docket_number": "No. 8010IC883", "first_page": "612", "last_page": "615", "citations": [ { "type": "official", "cite": "53 N.C. App. 612" } ], "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": "267 S.E. 2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562446, 8562319, 8562420, 8562390, 8562360 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0379-05", "/nc/300/0379-01", "/nc/300/0379-04", "/nc/300/0379-03", "/nc/300/0379-02" ] }, { "cite": "263 S.E. 2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550918 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0682-01" ] }, { "cite": "159 S.E. 2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "273 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575029 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0240-01" ] } ], "analysis": { "cardinality": 429, "char_count": 8554, "ocr_confidence": 0.809, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2055117885251225 }, "sha256": "01393ec1a3c36ff01e5c38fe12def8199ea352d3c71a67957addf939f42990aa", "simhash": "1:a86e74e28c5e0d7e", "word_count": 1339 }, "last_updated": "2023-07-14T21:33:41.579477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and BECTON concur." ], "parties": [ "MAE GOODMAN v. LINN-CORRIHER CORPORATION, Self-Insured" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendant\u2019s first contention is that the record contains no competent evidence to support the finding that plaintiff was totally disabled from the occupational disease byssinosis. We disagree. The record contains testimony by plaintiff as to the dusty conditions of her work place over a period of years; as to her resultant respiratory difficulties; and as to her having \u201cstopped working . . . because it was getting harder and harder breathing.\u201d It contains corroborating testimony by a fellow employee as to the dusty work conditions and plaintiffs resultant breathing problems. It contains competent testimony from the physician who examined plaintiff upon referral by the commission. He testified that plaintiff \u201cin all probability, had byssinosis, and because she had residual airways abnormalities, chronic obstruction, that was Grade III.\u201d He further testified that in his opinion plaintiffs \u201cchronic obstructive pulmonary disease, and byssinosis Grade III . . . could or might have been caused by . . . approximately 25 to 30 years exposure to cotton dust in her employment\u201d and that \u201cthe probability is certainly greater than 50 percent.\u201d This, together with other evidence in the record, supports the disability finding; and it is thus conclusive on appeal. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E. 2d 874 (1968).\nDefendant\u2019s second contention is that it had an absolute right to have plaintiff examined by a physician of its choice, and that the denial of its request in this regard was an abuse of discretion. Counsel for defendant, by letter dated 1 March 1979, requested that the hearing scheduled for 8 March 1979 be continued and that defendant be permitted to have plaintiff examined by a physician of its choice. At the hearing on 8 March 1979 plaintiff opposed the motion on grounds \u201cthat it was not timely [and] would delay the proceeding.\u201d The grant or denial of an employer\u2019s request that the employee submit to an independent physical examination is in the discretion of the commission. Taylor v. Delivery Service, 45 N.C. App. 682, 263 S.E. 2d 788, disc. rev. denied 300 N.C. 379, 267 S.E. 2d 684 (1980). Defendant here received the report from the commission-selected physician on 2 October 1978. One week before the matter was set for hearing, some five months later, defendant moved that the hearing be continued and that plaintiff be examined by a physician of its choice. Under these circumstances we find no abuse of discretion in the determination that the motion was not timely made.\nDefendant\u2019s third contention is that it was denied due process and prejudiced by (1) the denial of an independent medical examination and (2) the denial of access to other medical records. As to (1), defendant failed to make its request in timely fashion. As to (2), defendant\u2019s motion for a subpoena duces tecum to produce the records of physicians who had treated plaintiff at an earlier period was denied. The record indicates this motion was filed on 15 March 1979, one week after the hearing. Defendant could have subpoenaed these physicians and their records to the hearing. It also could have moved to examine them and their records at any time during the five month period between receipt of the commission-selected physician\u2019s report and the hearing. Under these circumstances we find no abuse of discretion in denial of the motion.\nDefendant\u2019s fourth contention is that the opinion and award is contrary to the purpose of the workers\u2019 compensation act. The contention is based on the following statement in the opinion and award:\nThe holding . . . simply points out another example in which the Workers\u2019 Compensation Act is being used, not for compensating a working man or woman while they are disabled on account of an industrial injury or disease, but to provide a supplemental source of income to a retired person who is receiving social security and possibly other benefits.\nThe statement apparently was intended as criticism of the hearing commissioner\u2019s decision, not as an expression of the purpose of the workers\u2019 compensation act. It was nevertheless clearly improper and should not have been included in the opinion and award. The statment is mere surplusage, however, and is neither essential to the award nor grounds for reversal. The purpose of the act is \u201cto provide compensation for injured [and diseased] employees or their dependents.\u201d Hollman, 273 N.C. at 252, 159 S.E. 2d at 882. Plaintiff has produced competent evidence from which the commission has found that she incurred a disease \u201cdue to causes and conditions which are characteristic of and peculiar to [her] particular trade, occupation or employment.\u201d G.S. 97-53(13). The improper statement does not render her any less entitled to an award resultant upon this finding.\nDefendant\u2019s fifth and final contention is that the commission should not have required it to pay for the deposition of the commission-selected physician. Commission Rule XX-A provides that when additional medical testimony is necessary to the disposition of a case, the hearing officer may order the deposition of medical witnesses taken; and the costs shall be borne by the defendants for those medical witnesses whom defendants paid for the initial examination of the plaintiff, and those cases where defendants are requesting the depositions. The record indicates that the commission-selected physician was paid by defendant. Further, the deposition was necessitated by defendant\u2019s refusal to stipulate the physician\u2019s report into evidence. Under these circumstances, the deposition constituted \u201cadditional medical testimony\u201d within Rule XX-A, and it was proper to order payment by defendant.\nAffirmed.\nJudges MARTIN (Robert M.) and BECTON concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Hassell & Hudson, by Charles R. Hassell, Jr., for plaintiff ap-pellee.", "Alexander and Brown, by B. S. Brown, Jr., and Constangy, Brooks and Smith, Atlanta, Georgia, by Daniel P. Murphy, for defendant appellant." ], "corrections": "", "head_matter": "MAE GOODMAN v. LINN-CORRIHER CORPORATION, Self-Insured\nNo. 8010IC883\n(Filed 1 September 1981)\n1. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 byssinosis\nEvidence was sufficient to support the finding of the Industrial Commission that plaintiff was totally disabled from the occupational disease byssinosis.\n2. Master and Servant \u00a7 93\u2014 workers\u2019 compensation \u2014 independent physical examination-denial proper\nDenial of defendant\u2019s request to have plaintiff examined by a physician of its choice was not an abuse of discretion, since defendant received a report from the physician elected by the Industrial Commission on 2 October 1978; one week before the matter was set for hearing, some five months later, defendant moved that the hearing be continued and that plaintiff be examined by a physician of its choice; and under these circumstances, there was no abuse of discretion in the determination that the motion was not timely made.\n3. Master and Servant \u00a7 94.2\u2014 workers\u2019 compensation \u2014statement in opinion and award surplusage\nThere was no merit to defendant\u2019s contention that the opinion and award of the Industrial Commission was contrary to the purpose of the Workers\u2019 Compensation Act because it contained the statement that the hearing commissioner\u2019s decision was \u201canother example in which the Workers\u2019 Compensation Act is being used, not for compensating a working man or woman while they are disabled . . . but to provide a supplemental source of income to a retired person who is receiving social security and possibly other benefits,\u201d though the statement was clearly improper and should not have been included in the opinion and award, since the statement was mere surplusage and was neither essential to the award nor grounds for reversal.\n4. Master and Servant \u00a7 93\u2014 workers\u2019 compensation \u2014 deposition\u2014cost borne by defendant\nThe Industrial Commission did not err in requiring defendant to pay for the deposition of a physician selected by the Industrial Commission, since the Commission-selected physician was paid by defendant, and the deposition was necessitated by defendant\u2019s refusal to stipulate the physician\u2019s report into evidence.\nAPPEAL by defendant from opinion and award of the North Carolina Industrial Commission, by Chief Deputy Commissioner Forrest H. Shuford, II (adopting the opinion and award of the Hearing Commissioner, Coy M. Vance), filed 19 December 1979. Heard in the Court of Appeals 1 April 1981.\nDefendant appeals from an award of workers\u2019 compensation to plaintiff on the basis of plaintiffs incurrence of the occupational disease byssinosis.\nHassell & Hudson, by Charles R. Hassell, Jr., for plaintiff ap-pellee.\nAlexander and Brown, by B. S. Brown, Jr., and Constangy, Brooks and Smith, Atlanta, Georgia, by Daniel P. Murphy, for defendant appellant." }, "file_name": "0612-01", "first_page_order": 640, "last_page_order": 643 }