{ "id": 8525498, "name": "WILLIE ROBINSON, Employee, Plaintiff v. J. P. STEVENS AND COMPANY, INC., Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Robinson v. J. P. Stevens & Co.", "decision_date": "1982-06-15", "docket_number": "No. 8110IC760", "first_page": "619", "last_page": "628", "citations": [ { "type": "official", "cite": "57 N.C. App. 619" } ], "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": "157 S.E. 2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566667 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0702-01" ] }, { "cite": "286 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "55 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527802 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/55/0663-01" ] }, { "cite": "200 S.E. 2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "35-36" } ], "opinion_index": 0 }, { "cite": "284 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560564 ], "year": 1973, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0126-01" ] }, { "cite": "225 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "290 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560920 ], "year": 1976, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0276-01" ] }, { "cite": "273 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "707" } ], "opinion_index": 0 }, { "cite": "302 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564328 ], "year": 1981, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0183-01" ] }, { "cite": "92 S.E. 2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219544 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0208-01" ] }, { "cite": "129 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562275 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0666-01" ] }, { "cite": "139 S.E. 443", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1927, "pin_cites": [ { "page": "445" }, { "page": "445" } ], "opinion_index": 0 }, { "cite": "194 N.C. 289", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604838 ], "weight": 2, "year": 1927, "pin_cites": [ { "page": "291" }, { "page": "291-92" } ], "opinion_index": 0, "case_paths": [ "/nc/194/0289-01" ] }, { "cite": "246 S.E. 2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "295 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564809 ], "year": 1978, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0527-01" ] }, { "cite": "176 S.E. 2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549953 ], "year": 1970, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0291-01" ] }, { "cite": "72 S.E. 193", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "156 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272474 ], "year": 1911, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc/156/0636-01" ] }, { "cite": "128 S.E. 485", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "190 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595302 ], "year": 1925, "pin_cites": [ { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0024-01" ] }, { "cite": "75 S.E. 860", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1912, "pin_cites": [ { "page": "863" } ], "opinion_index": 0 }, { "cite": "160 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270596 ], "year": 1912, "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/nc/160/0093-01" ] }, { "cite": "27 S.E. 2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "223 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611078 ], "year": 1943, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0446-01" ] }, { "cite": "215 S.E. 2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "93" } ], "opinion_index": 0 }, { "cite": "287 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564077 ], "year": 1975, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0515-01" ] }, { "cite": "289 S.E. 2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "74" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 345", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520980 ], "year": 1982, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0345-01" ] }, { "cite": "232 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "292 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567907 ], "year": 1977, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0210-01" ] }, { "cite": "289 S.E. 2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 594", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522863 ], "year": 1982, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0594-01" ] }, { "cite": "282 S.E. 2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "463" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "285 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "827" }, { "page": "828" } ], "opinion_index": 0 }, { "cite": "304 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570404 ], "year": 1982, "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0670-01" ] } ], "analysis": { "cardinality": 847, "char_count": 19666, "ocr_confidence": 0.784, "pagerank": { "raw": 5.667978661554476e-07, "percentile": 0.949112091091025 }, "sha256": "b445059b20e991334eb84f664df8cd10a35cfe9bb4c30c838220ade331b66e6b", "simhash": "1:2873c963687bd940", "word_count": 3033 }, "last_updated": "2023-07-14T20:31:38.946391+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and MARTIN (Harry C.) concur." ], "parties": [ "WILLIE ROBINSON, Employee, Plaintiff v. J. P. STEVENS AND COMPANY, INC., Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendants\u2019 Appeal\nDefendants assign error to the findings, conclusions, and award of the full Commission, contending that plaintiff failed to prove a sufficient causal connection between his byssinosis and cotton dust exposure, and that the record contains insufficient evidence of plaintiff\u2019s total and permanent disability. We disagree.\nThe findings of fact made by the Commission are conclusive on appeal if supported by competent evidence in the record. Walston v. Burlington Industries, 304 N.C. 670, 677, 285 S.E. 2d 822, 827 (1982); Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E. 2d 458, 463 (1981); Moore v. Piedmont Processing Company, 56 N.C. App. 594, 596, 289 S.E. 2d 573, 574 (1982). The conclusions of the Commission will not be disturbed if justified by the findings of fact. Inscoe v. Industries, Inc., 292 N.C. 210, 216, 232 S.E. 2d 449, 452 (1977); Rutledge v. Tultex Corp., 56 N.C. App. 345, 349, 289 S.E. 2d 72, 74 (1982); Moore, supra, 56 N.C. App. at 596, 289 S.E. 2d at 574.\nThe Commission found the following: \u201cPlaintiff was exposed to respirable cotton dust\u201d for a total of about twelve years while working at defendant-employer\u2019s cotton mill. Plaintiff contracted byssinosis, a disease in which the airways are obstructed \u201cdue to exposure to respirable cotton dust.\u201d No extrinsic factors contributed to plaintiffs airway obstruction. The Commission concluded that \u201cplaintiff ha[d] contracted . . . Byssinosis . . . caused by exposure to cotton dust in his employment with defendant-employer.\u201d We hold these findings fully supported by the record, and that they fully support the conclusion that plaintiffs byssinosis was caused by exposure to cotton dust.\nDefendants contend the medical testimony established at most that exposure to cotton dust was one factor in causing plaintiffs disease. They argue that the requirement that the disease be caused by exposure to cotton dust \u201cis not met by establishing that the disease condition may have been contributed to by the exposure or that such exposure, in addition to other, non-compensable causes, may have been a factor in the disease condition.\u201d\nAssuming, arguendo, that cotton dust was only one of multiple causal factors, \u201c[disability . . . resulting from a disease is compensable when . . . the disease ... is aggravated or accelerated by causes and conditions characteristic of and peculiar to claimant\u2019s employment.\u201d Walston, supra, 304 N.C. at 679-80, 285 S.E. 2d at 828. If the disease is not disabling apart from the aggravation by occupational conditions, \u201cthe employer must compensate the employee for the entire resulting disability.\u201d Morrison, supra, 304 N.C. at 18, 282 S.E. 2d at 470. The Commission specifically found that, although plaintiff had previously had nasal polyps, \u201cno extrinsic factors . . . contribute^] to plaintiffs airway obstruction\u201d and that, in any event, the polyps were not in themselves disabling. We find the causal connection between plaintiffs disease and his employment to have been sufficiently established, pursuant to the foregoing standards, to permit the Commission\u2019s conclusion of compensability.\nDefendants further contend that certain medical testimony supporting causation was incompetent, in that hypotheticals posed to the medical experts did not include significant facts which would diminish the role of cotton dust as a cause of plaintiffs disease. Specifically, defendants argue that the hypotheticals failed to present plaintiffs testimony that (1) he wore a respirator for a year while working for defendant-employer, (2) synthetics were processed in some rooms he worked in, and (3) he had breathing problems before he was hired by defendant-employer.\nWe have examined the hypotheticals, and we find that they adequately reflect plaintiffs testimony on these points. Further, any failure to include in the hypotheticals all elements of plaintiffs testimony is not fatal. A hypothetical question need only present \u201csufficient facts to allow [the witness] to express an intelligent and safe opinion.\u201d Dean v. Coach Co., 287 N.C. 515, 521, 215 S.E. 2d 89, 93 (1975). See also State v. Dilliard, 223 N.C. 446, 448, 27 S.E. 2d 85, 87 (1943); Pigford v. R.R., 160 N.C. 93, 103, 75 S.E. 860, 863 (1912). \u201cIt was not incumbent on the plaintiff to include in his [hypothetical] questions all the evidence bearing upon the fact to be proved; the defendants had the right to present other phases of the evidence in counter-hypothetical questions.\u201d Godfrey v. Power Co., 190 N.C. 24, 31, 128 S.E. 485, 490 (1925); see also State v. Stewart, 156 N.C. 636, 640, 72 S.E. 193, 194 (1911). The hypotheticals here contained \u201csufficient facts to allow [the witness] to express an intelligent and safe opinion.\u201d Dean, supra. Further, the record shows that defendants cross-examined the medical experts but did not pose any counter-hypotheticals which included those facts they believed significant regarding causation. We thus find no merit to this contention.\nDefendants next contend there is insufficient evidence to support the Commission\u2019s findings that plaintiff \u201cexperiences chest pain and breathlessness with moderate exercise and exertion,\u201d has been \u201cunable to work at gainful employment and has not been employed since May 30, 1979,\u201d and is \u201ctotally and permanently disabled as a result of Byssinosis.\u201d They argue that the finding that plaintiff cannot \u201cperform ordinary activity consistent with ordinary employment\u201d indicates the Commission applied the wrong criteria to determine disability.\nG.S. 97-2(9HSupp. 1981) defines \u201cdisability\u201d 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 The test for disability is whether and to what extent earning capacity is impaired, not the fact or extent of physical impairment. Priddy v. Cab Co., 9 N.C. App. 291, 297, 176 S.E. 2d 26, 30 (1970). \u201cIf [plaintiff] is unable to work and earn any wages, [he] is totally disabled. ... If [he] is able to work and earn some wages, but less than [he] was receiving at the time of [his] injury, [he] is partially disabled.\u201d Little v. Food Service, 295 N.C. 527, 533, 246 S.E. 2d 743, 747 (1978). We hold that the Commission\u2019s findings are supported by competent evidence and are sufficient to support a conclusion of total and permanent disability under the applicable standard.\nFinally, defendants assign error to a number of evidentiary rulings during the testimony of plaintiff\u2019s family physician. They argue that the hearing commissioner abused her discretion in allowing this witness, who was not a specialist, to give an expert opinion regarding the cause of plaintiffs disability.\n\u201c[W]hether none but a specialist can testify as an expert, is not a matter of judicial discretion the exercise of which by the trial court is final; it is a question of law which is subject to review by the appellate tribunal.\u201d Pridgen v. Gibson, 194 N.C. 289, 291, 139 S.E. 443, 445 (1927). A medical witness need not, as a matter of law, be a specialist in a particular subject to give an opinion on it. Seawell v. Brame, 258 N.C. 666, 129 S.E. 2d 283 (1963); Pridgen, supra, 194 N.C. at 291-92, 139 S.E. at 445. The witness here was properly accepted \u201cas an expert witness in general practice with experience in treating people with respiratory complaints.\u201d It thus was not error to allow him to give his opinions regarding causation and disability in response to properly framed hypothetical questions.\nDefendants\u2019 further argument that this witness improperly invaded the province of the fact finder in giving an opinion on the ultimate issue of whether plaintiff was disabled is without merit. Direct examination of this witness solicited an opinion on whether plaintiff was \u201cunable to engage in labor requiring exertion,\u201d that is, whether he was physically disabled. It did not solicit an opinion on the ultimate issue of whether and to what extent plaintiffs earning capacity was impaired. Priddy, supra.\nDefendants\u2019 final evidentiary argument is that they were denied their right to cross-examine plaintiffs family physician, because the hearing commissioner first excluded a hypothetical regarding causation and later reversed her ruling and admitted the testimony subsequent to the hearing. Assuming, arguendo, that the previously excluded evidence was improperly admitted due to lack of opportunity for cross-examination, the admission was not reversible error, because the findings of the Commission on disability and causation are supported by competent evidence introduced through two other medical experts. Findings supported by competent evidence are binding on appeal, even though incompetent evidence was also admitted. See, e.g., Blalock v. Durham, 244 N.C. 208, 92 S.E. 2d 758 (1956).\nPlaintiff\u2019s Appeal\nPlaintiff assigns error to the Commission\u2019s failure to award medical expenses pursuant to G.S. 97-29. The Commission\u2019s award reads, in pertinent part, as follows: \u201cDefendants shall pay all costs of reasonable medical and/or other treatment necessitated by plaintiffs occupational disease so long as such treatment will tend to lessen the period of disability or provide needed relief . . . . \u201d (Emphasis supplied.)\nThe Commission did not state the statutory basis for its award of medical expenses. Both G.S. 97-25 and G.S. 97-59, as in effect at the time of the injury, appear to support the award, because they allow payments only so long as treatment will \u201ctend to lessen the period of disability.\u201d G.S. 97-25 (1979); G.S. 97-59 (1979) (rewritten 1981). G.S. 97-29, however, contains a mandatory provision that applies when the Commission finds a permanent and total disability. See Peeler v. Highway Comm., 302 N.C. 183, 185, 273 S.E. 2d 705, 707 (1981). \u201cIn cases of total and permanent disability, compensation, including reasonable and necessary nursing services, medicines, sick travel, medical, hospital, and other treatment or care or rehabilitative services shall be paid for by the employer during the lifetime of the injured employee.\u201d G.S. 97-29 (1979 & Supp. 1981) (emphasis supplied). The Commission here found plaintiff to be permanently and totally disabled. It thus was required to award medical expenses during his lifetime. Id.\nPlaintiff assigns error to the full Commission\u2019s reversal of the hearing commissioner\u2019s award of attorney\u2019s fees pursuant to G.S. 97-88.1, which provides: \u201cIf the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for defendant\u2019s attorney or plaintiff\u2019s attorney upon the party who has brought or defended them.\u201d The full Commission concluded that this provision was not applicable because \u201cthe case was not defended without reasonable ground.\u201d\nThe following stipulated facts are pertinent to the inquiry:\nOn 10 August 1979 plaintiff served defendants with interrogatories seeking, inter alia, dust level measurements made by anyone, including state or federal OSHA representatives, in the parts of the mill in which plaintiff worked. Plaintiff specifically requested copies of any OSHA citations.\nOn 2 November 1979, plaintiff served defendant-employer\u2019s plant manager with a subpoena duces tecum requiring that he bring to ,a 16 November 1979 hearing copies of all dust level measurements made from 1960 to date in a room where plaintiff worked. On 8 November 1979 plaintiff served on defendants a motion to compel answers. On 9 November 1979 defendants served their answers to the interrogatories, objecting to the request for dust level measurements as irrelevant to plaintiff\u2019s claim. Also on 9 November 1979 defendants moved to quash the subpoena duces tecum as irrelevant and overbroad.\nAt the 16 November 1979 hearing certain dust level measurements were produced by defendant-employer\u2019s personnel manager and introduced by plaintiff over defendants\u2019 objections. Defendant-employer\u2019s personnel manager, as well as counsel for defendants, denied specific knowledge of the existence of OSHA dust level measurements.\nOn 5 December 1979 the hearing commissioner ordered that the matter be reset for hearing on 17 December 1979 \u201cfor the limited purpose of presentation by the plaintiff of dust level tests and measurements performed by OSHA ... in the area which and during the time when, plaintiff worked for the defendant-employer.\u201d Before the 17 December 1979 hearing defendants delivered to plaintiff documents containing dust level measurements, including a 4 November 1976 OSHA citation with attachments showing that plaintiff in particular was exposed to a \u201cserious\u201d level of dust. Defendants stipulated to the authenticity of these documents, but objected to them as irrelevant and therefore inadmissible. The 17 December 1979 hearing was thus rendered unnecessary and was never held. The hearing commissioner awarded plaintiff attorney\u2019s fees\nas a result of plaintiffs counsels\u2019 preparation for the [17 December 1979] hearing . . . which was requested because of defendants\u2019 failure to produce documents which with reasonable diligence and in response to subpoena and order limiting the same, could have been provided at the [16 November 1979] hearing ... or prior to another hearing being set and plaintiffs having to acquire said documents in support of their motion for the [17 December 1979] hearing for the purpose of introducing the same into evidence. There is no reasonable argument or defense that these documents were not relevant, competent and material on the issue of plaintiffs exposure to cotton dust, an element of the claim herein, that these documents did not exist or that defendants did not have knowledge of them.\nThe full Commission, upon reviewing an award by the hearing commissioner, is not bound by findings of fact supported by the evidence, but may reconsider evidence and adopt or reject findings and conclusions of the hearing commissioner. Watkins v. City of Wilmington, 290 N.C. 276, 280, 225 S.E. 2d 577, 580 (1976); Lee v. Henderson & Associates, 284 N.C. 126, 130, 200 S.E. 2d 32, 35-36 (1973). The findings and conclusions of the full Commission, however, are binding on this Court if adequately supported by the record. Walston, supra; Morrison, supra; Moore, supra. Whether the evidence shows a \u201creasonable ground\u201d to defend is, however, a matter reviewable by this court. See Sparks v. Mountain Breeze Restaurant, 55 N.C. App. 663, 286 S.E. 2d 575 (1982).\nWhile we cannot agree with defendants\u2019 contention that the dust level measurements for the locations and times of plaintiffs work for defendant-employer were irrelevant, there was sufficient evidence to support a finding that defendants had no knowledge of the OSHA measurements. Therefore, although there was evidence to support a contrary result, there was sufficient evidence to support the Commission\u2019s conclusion that \u201cthe case was not defended without reasonable ground.\u201d The conclusion is therefore binding on this Court.\nPlaintiff assigns error to the failure of the Commission to award attorney\u2019s fees pursuant to G.S. 97-88, which provides:\nIf the [Industrial Commission at a hearing on review . . . shall find that such hearing . . . [was] brought by the insurer and the Commission ... by its decision orders the insurer to make . . . payments of benefits ... to the injured employee, the Commission . . . may further order that the cost to the injured employee of such hearing . . . including therein reasonable attorney\u2019s fee . . . shall be paid by the insurer as a part of the . . . costs.\nDefendants here appealed to the full Commission and were ordered to compensate plaintiff. The prerequisites for an award pursuant to G.S. 97-88 thus were fulfilled. See Bowman v. Chair Co., 271 N.C. 702, 157 S.E. 2d 378 (1967). The statute, however, leaves the award to the Commission\u2019s discretion; and we find no abuse of discretion in the failure to enter an award here.\nIn light of our disposition of defendants\u2019 appeal, we need not address plaintiffs assignment of error to the exclusion of certain evidence.\nResult\nIn defendants\u2019 appeal, affirmed.\nIn plaintiffs appeal, remanded for entry of an award of medical expenses pursuant to G.S. 97-29; otherwise, affirmed.\nJudges MARTIN (Robert M.) and MARTIN (Harry C.) concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Hassell & Hudson, by Charles R. Hassell, Jr., Robin E. Hudson, and R. James Lore, for plaintiff.", "Maupin, Taylor & Ellis, P.A., by Richard M. Lewis and David V. Brooks, for defendants." ], "corrections": "", "head_matter": "WILLIE ROBINSON, Employee, Plaintiff v. J. P. STEVENS AND COMPANY, INC., Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. 8110IC760\n(Filed 15 June 1982)\n1. Master and Servant \u00a7 68\u2014 sufficient causal connection between byssinosis and cotton dust exposure\nThe causal connection between plaintiffs disease of byssinosis and his employment was sufficiently established to permit the Commission\u2019s conclusion of compensability.\n2. Master and Servant \u00a7 68\u2014 hypotheticals posed to experts adequate\nIn a workers\u2019 compensation proceeding, hypotheticals posed to medical experts adequately reflected plaintiffs testimony concerning former breathing problems and the material with which he worked.\n3. Master and Servant \u00a7 68\u2014 byssinosis \u2014findings and conclusions supporting finding of\nThe Commission\u2019s findings that plaintiff \u201cexperiences chest pain and breathlessness with moderate exercise and exertion,\u201d has been \u201cunable to work at gainful employment and has not been employed since May 30, 1979,\u201d and is \u201ctotally and permanently disabled as a result of Byssinosis,\u201d were supported by competent evidence and were sufficient to support a conclusion of total and permanent disability under G.S. 97-2(9)(Supp. 1981).\n4. Evidence \u00a7 50.2; Master and Servant \u00a7 68\u2014 medical expert witness in general practice \u2014 admissibility of testimony\nThe Industrial Commission did not err in allowing a medical expert witness \u201cin general practice with experience in treating people with respiratory complaints\u201d to give an opinion on whether plaintiff was \u201cunable to engage in labor requiring exertion.\u201d\n5. Master and Servant \u00a7 75\u2014 workers\u2019 compensation \u2014 permanent disability\u2014 failure to award medical expenses\nUnder G.S. 97-29, where the Industrial Commission found plaintiff to be permanently and totally disabled, it was required to award medical expenses during his lifetime.\n6. Master and Servant \u00a7 99\u2014 failure to award attorney\u2019s fees proper \u2014 reasonable grounds for not defending\nThere was no evidence to support the Commission\u2019s conclusion that \u201cthe case was not defended without reasonable ground\u201d under G.S. 97-88.1 and the Commission\u2019s denial of attorney\u2019s fees under G.S. 97-88.1 where there was sufficient evidence to support a finding that defendant had no knowledge of OSHA dust measurements being sought ,by plaintiff.\n7. Master and Servant \u00a7 99\u2014 failure to enter award of attorney\u2019s fees \u2014no abuse of discretion\nThe Industrial Commission did not abuse its discretion in failing to enter an award of attorney\u2019s fees for plaintiff pursuant to G.S. 97-88.\nAPPEAL by defendants from the North Carolina Industrial Commission. Opinion and award entered 29 January 1981. Heard in the Court of Appeals 30 March 1982.\nPlaintiff alleged he suffered from byssinosis as a result of exposure to cotton dust while employed by defendant-employer. The full Commission affirmed in part the hearing commissioner\u2019s award of compensation for total and permanent disability as a result of an occupational disease. From the opinion and award of the full Commission, defendants appeal and plaintiff cross appeals.\nHassell & Hudson, by Charles R. Hassell, Jr., Robin E. Hudson, and R. James Lore, for plaintiff.\nMaupin, Taylor & Ellis, P.A., by Richard M. Lewis and David V. Brooks, for defendants." }, "file_name": "0619-01", "first_page_order": 649, "last_page_order": 658 }