{ "id": 8524051, "name": "ROY E. McKEE, Employee v. CRESCENT SPINNING COMPANY, Employer, and THE TRAVELERS INSURANCE COMPANY, Carrier", "name_abbreviation": "McKee v. Crescent Spinning Co.", "decision_date": "1981-11-17", "docket_number": "No. 8110IC159", "first_page": "558", "last_page": "564", "citations": [ { "type": "official", "cite": "54 N.C. App. 558" } ], "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": "111 S.E. 2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "251 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625047 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/251/0296-01" ] }, { "cite": "120 Ariz. 278", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1606354 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ariz/120/0278-01" ] }, { "cite": "7 Ore. App. 119", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2131388 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "120-21" }, { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/or-app/7/0119-01" ] }, { "cite": "277 P. 2d 338", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1954, "pin_cites": [ { "page": "339" } ], "opinion_index": 0 }, { "cite": "45 Wash. 2d 574", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 2426021 ], "year": 1954, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/45/0574-01" ] }, { "cite": "69 S.E. 2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "235 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623875 ], "year": 1952, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0315-01" ] }, { "cite": "256 S.E. 2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573538 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0636-01" ] }, { "cite": "265 S.E. 2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "149" }, { "page": "149" } ], "opinion_index": 0 }, { "cite": "300 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559814 ], "year": 1980, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0094-01" ] }, { "cite": "271 S.E. 2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521054 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0301-01" ] }, { "cite": "232 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567907 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0210-01" ] } ], "analysis": { "cardinality": 622, "char_count": 13640, "ocr_confidence": 0.799, "pagerank": { "raw": 3.6309246923704875e-07, "percentile": 0.8891290573311417 }, "sha256": "b51d9f02a4450855da0c74b616112b1dc7451c228c9ff9271e3831cfcf750791", "simhash": "1:9fe1838d3c1a52cc", "word_count": 2199 }, "last_updated": "2023-07-14T17:12:28.716896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Whichard concur." ], "parties": [ "ROY E. McKEE, Employee v. CRESCENT SPINNING COMPANY, Employer, and THE TRAVELERS INSURANCE COMPANY, Carrier" ], "opinions": [ { "text": "HILL, Judge.\nOur review of an award by the Industrial Commission is limited to two questions: (1) whether the Commission\u2019s findings are supported by competent record evidence; and (2) whether those findings justify the Commission\u2019s conclusions of law. Inscoe v. DeRose Industries, 292 N.C. 210, 232 S.E. 2d 449 (1977); Walston v. Burlington Industries, 49 N.C. App. 301, 271 S.E. 2d 516 (1980). In their first two assignments of error defendants argue that the Commission erred in its finding that plaintiff\u2019s byssinosis was the cause of his pulmonary disease because of evidence that chronic bronchitis was present when the byssinosis first was diagnosed. Defendants assign as error the Commission\u2019s failure to conclude that plaintiff\u2019s byssinosis was secondary to his chronic bronchitis, contending chronic bronchitis was the disabling factor and is not attributable to plaintiff\u2019s employment. We do not agree.\nThere is no evidence to support defendants\u2019 contention that plaintiff\u2019s byssinosis was secondary to his chronic bronchitis. Defendants apparently draw their conclusion from Dr. Harris\u2019s testimony that \u201cMr. McKee has a chronic obstructive lung disease, byssinosis, probable, but there is present chronic bronchitis. I was positive of the bronchitis and in my opinion there was a probability of byssinosis.\u201d (Emphasis added.) There is, however, plenary evidence that plaintiff\u2019s \u201cchronic obstructive lung disease\u201d \u2014both chronic bronchitis and byssinosis \u2014 was related to his employment; Dr. Harris\u2019s medical report, stipulated into evidence by the parties, so states. Since the evidence shows that both types of \u201cchronic obstructive lung disease\u201d were related to plaintiff\u2019s exposure to cotton dust, it is of no consequence that the Commission failed to find that the plaintiff\u2019s chronic bronchitis was a contributing factor to his disability. We therefore overrule these assignments of error.\nIn their remaining assignments of error, defendants argue that plaintiffs claim for benefits was barred by the notice provisions of G.S. 97-22 and 97-58. Defendants contend that notice of plaintiffs injury to his employer required by G.S. 97-22 was filed well beyond \u201cthe date that the employee [was] advised by competent medical authority that he [had an occupational disease].\u201d G.S. 97-58(b). We do not agree and overrule these assignments of error.\nThe Workers\u2019 Compensation Act [the Act] contemplates that two events must occur before a workers\u2019 compensation claim ripens and the notice provisions are triggered: (1) injury from an occupational disease; and (2) disability. In Taylor v. J. P. Stevens & Co., 300 N.C. 94, 102, 265 S.E. 2d 144, 149 (1980), our Supreme Court determined that, \u201cwith reference to occupational diseases the time within which an employee must give notice or file claim begins to run when the employee is first informed by competent medical authority of the nature and work-related cause of the disease.\u201d (Emphasis added.) Thus, notification of injury in the manner quoted above is a necessary element of the claim. A finding of the date of disability also is necessary to determine which version of the Act to apply in determining benefits. See Wood v. J. P. Stevens & Co., 297 N.C. 636, 256 S.E. 2d 692 (1979). We first must determine, then, at what point plaintiff was informed of the \u201cnature and work-related cause\u201d of his condition.\nDefendants contend that plaintiff was properly informed of his injury in 1966 when Dr. McDowell told plaintiff he had a \u201cbreathing problem and if it didn\u2019t soon get better to get out of the mill.\u201d Defendants contend that plaintiff was further informed in 1970 when Dr. McTesson made his \u201cbrown lung\u201d diagnosis. Merely stating one has a \u201cbreathing problem and if it didn\u2019t soon get better to get out of the mill\u201d or a simple diagnosis of \u201cbrown lung\u201d neither advised plaintiff of the nature nor work-related cause of his condition.\nIn Singleton v. D. T. Vance Mica Co., 235 N.C. 315, 321, 69 S.E. 2d 707, 711 (1952), a workers\u2019 compensation claimant received a copy of a letter from his doctor stating that examination revealed \u201c \u2018evidence of dust disease\u2019 \u201d with a recommendation that the claimant \u201c \u2018be transferred to some other location . . . where the dust hazard would be negligible.\u2019 \u201d This advice was found not sufficient to give notice of silicosis, an occupational disease. Id. Similarly, \u201c[i]t is not enough that the workman be told a medical name for his disease, which may be meaningless to him, without a statement of its causal relationship to an extra-hazardous occupation.\u201d Williams v. Dept. of Labor & Industries, 45 Wash. 2d 574, 576, 277 P. 2d 338, 339 (1954). Thus, where there is no evidence in the record that \u201cany doctor at any time prior to the filing of the claim specifically told [the claimant], simply and directly, that his condition arose out of his employment or anything clearly to that effect,\u201d there is no proper notice of. injury to the employee. Templeton v. Pope & Talbot, Inc., 7 Ore. App. 119, 120-21, 490 P. 2d 205, 206 (1971). We find these cases in accord with the rule cited in Taylor v. J. P. Stevens & Co., supra, and their results determinative of the case sub judice.\nPlaintiff first was informed of a \u201cbreathing problem\u201d in 1966. This diagnosis was accompanied only by an admonition to \u201cget out of the mill\u201d; a recommendation similar, if not less specific, than that given in Singleton v. D. T. Vance Mica Co., supra. Plaintiff testified that in 1970 \u201ca Dr. McTesson told me I had brown lung but he did not tell me what brown lung was. I didn\u2019t know it amounted to anything except I had it. I didn\u2019t know what caused it and the doctor never told me what caused it.\u201d We note that \u201cbrown lung\u201d is not a \u201cmedical name\u201d but slang terminology for byssinosis. In 1970, when this diagnosis was made, the term clearly was meaningless to plaintiff. \u201c[0]ur legislature never intended that a claimant for workers\u2019 compensation benefits would have to make a correct medical diagnosis of his own condition prior to notification by other medical authority of his disease in order to timely make his claim.\u201d Taylor v. J. P. Stevens & Co., supra at 102, 265 S.E. 2d at 149. Likewise, plaintiff cannot be expected to inquire further and discover the relationship of his condition to his employment. Nelson v. Industrial Comm\u2019n, 120 Ariz. 278, 585 P. 2d 887 (1978). Plaintiff therefore was not properly informed in 1966 and in 1970 of the \u201cnature and work-related cause\u201d of his condition as required under G.S. 97-58(b).\nAs to the existence of the first precondition of plaintiffs claim, there is no bar since he gave notice thereof to his employer on 22 May 1978, almost three months before the record shows he was first informed by competent medical authority of the existence of his disease. G.S. 97-22; 97-58(b).\nWe now turn to a determination of the second event \u2014 disability \u2014 to decide whether the Commission erred in concluding plaintiffs claim was timely filed. G.S. 97-55 defines \u201cdisability\u201d for occupational diseases as \u201cthe state of being incapacitated as the term is used in defining \u2018disablement\u2019 in G.S. 97-54.\u201d G.S. 97-54 states that for occupational disease other than asbestosis and silicosis, \u201cdisablement\u201d is equivalent to \u201cdisability\u201d under G.S. 97-2(9). Under the latter statute, \u201cdisability\u201d is defined as \u201cincapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d G.S. 97-2(9). (Emphasis added.)\nIn the case sub judice, plaintiff was not disabled until he could work and earn wages no longer. See Fetner v. Rocky Mount Marble & Granite Works, 251 N.C. 296, 111 S.E. 2d 324 (1959). It was stipulated, and the Commission found as fact, that plaintiff began working for defendant-employer on 7 March 1966 and quit working 22 December 1971. We find the Commission was correct in its conclusion of law that plaintiff was disabled from the time he stopped working. Therefore, the claim was timely filed since its two elements were met in 1978 when plaintiff was properly notified by Dr. Harris of his disease.\nThe Commission concluded, however, that plaintiff was \u201cdisabled\u201d as of 7 March 1971 with the exception of a week of temporary employment thereafter. Plaintiffs compensation was computed as of 7 March 1971 according to G.S. 97-29 as it existed before the 1971 amendment thereto, effective 1 July 1971. We believe the record supports the Commission\u2019s finding of fact that disability occurred on the latter date, 22 December 1971, rather than on 7 March 1971. The Commission then should have applied G.S. 97-29, as amended, and computed plaintiff\u2019s compensation as of 22 December 1971, the day he quit working. See 1971 N.C. Sess. Laws, c. 281, \u00a7 1; see also Wood v. J. P. Stevens & Co., supra.\nSince the Commission\u2019s conclusion that plaintiff\u2019s disability occurred on 7 March 1971 is not supported by the facts as found, we remand this case to the Commission for a conclusion of law consistent with the facts and a re-computation of plaintiff\u2019s award as of 22 December 1971, with the exception of the week thereafter when plaintiff was temporarily employed. For these reasons, we\nAffirm in part and remand the case to the Industrial Commission for entry of a Conclusion of Law consistent with this opinion. Plaintiff\u2019s motion for attorney\u2019s fees is denied.\nJudges Hedrick and Whichard concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Frederick R. Stann for Roy E. McKee, plaintiff-appellee.", "Boyle, Alexander, Hord & Smith, by B. Irvin Boyle, for Crescent Spinning Company and The Travelers Insurance Company, defendant-appe Hants." ], "corrections": "", "head_matter": "ROY E. McKEE, Employee v. CRESCENT SPINNING COMPANY, Employer, and THE TRAVELERS INSURANCE COMPANY, Carrier\nNo. 8110IC159\n(Filed 17 November 1981)\n1. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 occupational disease \u2014contributing factors\nIn a workers\u2019 compensation case where the evidence showed that plaintiffs chronic bronchitis and byssinosis were related to plaintiffs exposure to cotton dust, it was of no consequence that the Commission failed to find that the plaintiffs chronic bronchitis was a contributing factor to his disability.\n2. Master and Servant \u00a7 68\u2014 occupational disease \u2014 claim not barred by notice provisions\nThe Workers\u2019 Compensation Act contemplates that two events must occur before a worker\u2019s compensation claim ripens and the notice provisions of G.S. 97-22 and G.S. 97-68 are triggered: (1) injury from an occupational disease; and (2) disability. Therefore, plaintiff met the first precondition of his claim where the evidence showed that plaintiff worked with defendant until 22 December 1971, that prior to that time he had been informed by doctors that he had a \u201cbreathing problem\u201d and \u201cbrown lung,\u201d but that plaintiff was unaware that his breathing difficulty was connected with his exposure to cotton dust until August of 1978 and where he gave notice to his employer of a claim on 22 May 1978, and he met the .second precondition when he could work and earn wages no longer in December 1971.\nAPPEAL by defendants from the Opinion and Award of the North Carolina Industrial Commission entered 2 September 1980. Heard in the Court of Appeals 17 September 1981.\nPlaintiff filed a claim for workers\u2019 compensation benefits with the Industrial Commission on 22 May 1978. At the hearing before Deputy Commissioner Lawrence B. Shuping, Jr., plaintiffs testimony tended to show that he had dropped out of school in the ninth grade and worked in cotton mills for 37 years thereafter. Plaintiff smoked cigarettes for nine years but quit at age 27 when told the mill \u201cdidn\u2019t allow you to smoke.\u201d For the past six or seven years he was employed by defendant Crescent Spinning Company. Plaintiff developed health problems and was advised by physicians in 1966 that he had a \u201cbreathing problem,\u201d and in 1970 that he had \u201cbrown lung.\u201d However, neither physician explained the cause of the disease. Plaintiff continued working until 22 December 1971. One week before his layoff, a physician advised plaintiff that he had a \u201cbreathing problem.\u201d Sometime in 1978 another physician told plaintiff he had \u201cchronic obstructive lung disease,\u201d but at that time plaintiff was unaware that his breathing difficulty was connected with his exposure to cotton dust.\nDr. T. Reginald Harris testified that he examined plaintiff in August 1978 and diagnosed plaintiffs condition as severe obstructive lung disease causing a substantial reduction in lung capacity. He further testified that plaintiffs activities had been reduced to \u201cfeeding, clothing himself, riding in an automobile and walking short distances in the house and outside at a slow rate.\u201d Dr. Harris concluded that plaintiff \u201cprobably does have byssinosis;\u201d however, he also testified that \u201cMcKee has a chronic obstructive lung disease, byssinosis, probable, but there is present chronic bronchitis.\u201d Dr. Harris stated that plaintiff\u2019s pulmonary disease was caused by his exposure to cotton dust, but he could not say the occupational exposure was the only factor involved. He further testified that the byssinosis and the chronic bronchitis contributed to plaintiffs permanent disability.\nOn 18 December 1979 Deputy Commissioner Shuping entered his Opinion and Award, concluding that plaintiff contracted byssinosis as a result of his exposure to cotton dust in his employment, that byssinosis is an occupational disease, that plaintiff\u2019s claim was timely filed, and that plaintiff was entitled to compensation. On 2 September 1980 the Full Commission entered its Opinion and Award, adopting entirely the conclusions of the deputy commissioner. Defendants appealed.\nFrederick R. Stann for Roy E. McKee, plaintiff-appellee.\nBoyle, Alexander, Hord & Smith, by B. Irvin Boyle, for Crescent Spinning Company and The Travelers Insurance Company, defendant-appe Hants." }, "file_name": "0558-01", "first_page_order": 586, "last_page_order": 592 }