{
  "id": 8525952,
  "name": "WINBERT GUY, Employee, Plaintiff v. BURLINGTON INDUSTRIES, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants",
  "name_abbreviation": "Guy v. Burlington Industries",
  "decision_date": "1985-05-21",
  "docket_number": "No. 8410IC1003",
  "first_page": "685",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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      "cite": "300 N.C. 329",
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      "cite": "307 N.C. 582",
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      "cite": "297 S.E. 2d 122",
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      "cite": "299 N.C. 582",
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  "last_updated": "2023-07-14T16:43:43.207286+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Webb and Whichard concur."
    ],
    "parties": [
      "WINBERT GUY, Employee, Plaintiff v. BURLINGTON INDUSTRIES, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nPlaintiffs first assignment of error is set out in the record as follows: \u201cThe Industrial Commission erred in denying Appellant\u2019s request to present necessary evidence which would likely have affected the outcome of the case.\u201d The record reveals the following facts necessary to an understanding of this assignment of error.\nThe first hearing on plaintiffs claim was conducted on 26 June 1979. The opinion and award filed by the Chief Deputy Commissioner on 5 May 1980 was vacated by the Full Commission, and the case was reset for further testimony. A second hearing was held on 18 June 1981. At the conclusion of that hearing, Deputy Commissioner Scott told plaintiffs counsel that additional testimony would be taken from another witness \u201c[a]s soon as you are prepared to go forward with the hearing. . . Plaintiff produced additional evidence at the final hearing, held 13 August 1981. At the conclusion of that hearing, Deputy Commissioner Scott asked, \u201cDoes that close the evidence? . . . Has all the evidence been submitted or is there more?\u201d Plaintiff responded by saying \u201cwe\u2019re trying to develop additional medical testimony,\u201d and by requesting \u201cthirty days in which to complete that and advise you of our intentions.\u201d Deputy Commissioner Scott then agreed to hold the record open for thirty days. On 16 September 1981, having heard nothing from plaintiff, Ms. Scott called plaintiffs counsel and, learning that plaintiff desired an additional thirty days in which to gather additional evidence, granted plaintiffs request for another extension of time. On 2 November 1981, more than two weeks after the expiration of plaintiffs most recent extension, Deputy Commissioner Scott closed the record, having heard nothing further from plaintiff. On 5 November Ms. Scott called plaintiffs counsel in connection with a matter related to the case, at which time plaintiffs counsel asked to be allowed to take additional testimony from plaintiff. Plaintiffs counsel was informed that such additional evidence would be permitted only if defendants consented. Plaintiffs counsel indicated at that time that plaintiff would not seek defendants\u2019 consent and, in fact, never did so. On 10 November 1981 Deputy Commissioner Scott\u2019s opinion and award denying plaintiffs claim for benefits was filed, from which opinion and award plaintiff gave notice of appeal to the Full Commission. On 8 September 1982 plaintiff filed a motion asking that the opinion and award be set aside and that \u201cthe claim be reset in Raleigh for additional testimony from the plaintiff and other witnesses who may be available to establish the extent of his exposure to the floor finish\u201d allegedly responsible for plaintiffs disability. On 27 March 1984 the Full Commission, without hearing additional evidence, adopted as its own the opinion and award filed by Deputy Commissioner Scott, and affirmed the result reached therein.\nIn his brief plaintiff contends that \u201c[t]he denial of Appellant\u2019s request for an additional opportunity to describe the extent of his exposure to [the chemical that allegedly caused plaintiffs disability] was in effect a denial of his claim,\u201d amounting to an abuse of discretion. We emphatically disagree.\n\u201cOrdinarily, the question of whether to reopen a case for the taking of additional evidence rests in the sound discretion of the Industrial Commission, and its decision will not be disturbed on appeal in the absence of an abuse of discretion.\u201d Schofield v. Tea Co., 299 N.C. 582, 596, 264 S.E. 2d 56, 65 (1980). G.S. 97-85 provides that the Commission shall receive further evidence \u201cif good ground be shown therefor.\u201d Our Courts have said that whether \u201cgood ground be shown therefor\u201d is within the sound discretion of the Commission, and its ruling in that regard will not be reviewed on appeal absent a showing of manifest abuse of discretion. See Lynch v. Kahn Construction Co., 41 N.C. App. 127, 254 S.E. 2d 236 (1979); Thompson v. Burlington Industries, 59 N.C. App. 539, 297 S.E. 2d 122 (1982), cert. denied, 307 N.C. 582, 299 S.E. 2d 650 (1983).\nWe hold that the Commission acted well within its discretion in refusing to permit plaintiff to introduce additional evidence. Rule XXI.6, Rules of Industrial Commission, provides that motions for a new hearing to take additional evidence must be written and supported by an affidavit. In the instant case, plaintiffs written motion is not supported by an affidavit, and the motion itself contains only vague implications as to the content of the additional evidence sought to be introduced. In addition, we note that Deputy Commissioner Scott accorded plaintiff substantial latitude in the presentation of his case. Plaintiff has offered no reason whatsoever for his failure to provide the testimony in question within the generous time allowed by the Deputy Commissioner. Furthermore, while Deputy Commissioner Scott agreed to hold the record open for more than sixty days based on plaintiffs representations that plaintiff hoped to introduce additional medical testimony, the testimony eventually sought to be introduced was that of plaintiff, who had been available to testify at all times and who in fact did testify in 1979. We also point out that plaintiff made no attempt to seek defendant\u2019s consent to the admission of this testimony, even after the Deputy Commissioner revealed her willingness to consider this evidence given such consent. Finally, we note that plaintiff has made no showing that the evidence sought to be introduced was not known to him at the time of the last hearing on 13 August 1981. In conclusion, we find plaintiffs contention that the Commission abused its discretion in refusing to conduct yet another hearing on the matter absurd.\nPlaintiffs second and third assignments of error assert that the Commission erred by \u201cfailing to consider\u201d certain evidence and by \u201cfailing ... to make findings on the occupational aggravation of his pre-existing illness.\u201d\nThe well-established rule concerning the role of the appellate court in reviewing an appeal from the Industrial Commission is that the Court \u201cis limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the conclusions of law are supported by the findings.\u201d Barham v. Food World, 300 N.C. 329, 331, 266 S.E. 2d 676, 678 (1980). The Commission must make specific findings of fact regarding each material fact upon which a plaintiffs right to compensation depends. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E. 2d 101 (1981). The Commission is not required, however, to make findings as to facts presented by the evidence that are not material to plaintiffs claim. Starr v. Paper Co., 8 N.C. App. 604, 175 S.E. 2d 342 (1970).\nIn the instant case, the transcript reveals that plaintiff, at the first hearing, attempted to show that his lung disease was at least partially attributable to his occupational exposure to cotton dust. The evidence affirmatively disclosed, however, and the Commission found as a fact, that the mill in which plaintiff was employed processed cotton for only two months during the almost twenty-five year period of plaintiffs employment. Plaintiff then shifted his theory of recovery to occupational disease brought about by his exposure to various chemicals used in the mill. The evidence revealed, however, and the Commission found as a fact, that the chemicals about which plaintiff inquired, with one exception, affect the central nervous system, not the respiratory system. The single chemical shown by the evidence to have potentially adverse effects on the respiratory system is found in a floor finish used by the plant in which plaintiff worked. The evidence showed and the Commission found as a fact that excessive exposure to this chemical, when wet, could cause chest pain, coughing, and breathing difficulties. Plaintiff presented no evidence showing that he had ever been exposed to this floor finish, which the record shows was used \u201cvery infrequently,\u201d and was generally not used when the plant was in operation. We think it clear that the Commission's findings of fact are supported by competent evidence and that they in turn support the Commission\u2019s conclusions of law. We further hold that the findings of fact made by the Commission are sufficient to resolve all material facts raised by the evidence. The assignment of error is without merit.\nRather than abusing its discretion to the prejudice of the plaintiff as counsel contends, the record in this case demonstrates an overindulgent attitude upon the part of the Industrial Commission toward the dilatory and procrastinating tactics of plaintiffs counsel which inevitably works to the detriment of all parties with business before the Industrial Commission. The truth of the axiom that \u201cjustice delayed is justice denied,\u201d is clear in this case.\nAffirmed.\nJudges Webb and Whichard concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "Charles R. Hassell, Jr., for plaintiff, appellant.",
      "Smith, Anderson, Blount, Dor sett, Mitchell & Jemigan, by C. Ernest Simons, Jr., and Steven M. Sartorio, for defendants, ap-pellees."
    ],
    "corrections": "",
    "head_matter": "WINBERT GUY, Employee, Plaintiff v. BURLINGTON INDUSTRIES, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. 8410IC1003\n(Filed 21 May 1985)\n1. Master and Servant \u00a7 94.4\u2014 workers\u2019 compensation \u2014 refusal to allow additional evidence \u2014no abuse of discretion\nThe Industrial Commission did not abuse its discretion by refusing to permit plaintiff to introduce additional evidence where plaintiffs motion was not accompanied by an affidavit as required by Industrial Commission Rule XXI.6 and the motion contained only vague implications as to the content of the additional evidence; the Deputy Commissioner accorded plaintiff substantial latitude in the presentation of his case and agreed to hold the record open for more than sixty days based on plaintiffs representations that he hoped to introduce additional medical testimony; plaintiff offered no reason for his failure to provide the testimony within the time allowed by the Deputy Commissioner; the testimony eventually sought to be introduced was that of plaintiff, who had been available to testify at all times and who had testified in the first hearing in 1979; plaintiff made no attempt to seek defendant\u2019s consent to the admission of the testimony even after the Deputy Commissioner revealed her willingness to consider the evidence given such consent; and plaintiff made no showing that the evidence sought to be introduced was not known to him at the time of the last hearing. G.S. 97-85.\n2. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 no occupational disease \u2014 findings sufficient\nThe Industrial Commission\u2019s findings of fact were supported by competent evidence, supported the conclusions, and resolved all material facts raised by the evidence where the evidence showed and the Commission found that the mill in which plaintiff was employed processed cotton for only two months during the almost twenty-five year period of plaintiffs employment and the only chemical affecting the respiratory system about which plaintiff inquired was found in a floor finish which could cause breathing difficulties if there was excessive exposure to the chemical when wet. Plaintiff presented no evidence that he had ever been exposed to the floor finish, which the record shows was used very infrequently and generally not when the plant was in operation.\nAppeal by plaintiff employee from opinion and award of the North Carolina Industrial Commission filed 27 March 1984. Heard in the Court of Appeals 6 May 1985.\nPlaintiff filed this claim under the Workers\u2019 Compensation Act, asserting that he is entitled to benefits under the Act because of disability resulting from an occupational disease. Following a hearing, the Industrial Commission made findings of fact and conclusions of law and entered an opinion and award denying plaintiffs claim. Plaintiff appealed.\nCharles R. Hassell, Jr., for plaintiff, appellant.\nSmith, Anderson, Blount, Dor sett, Mitchell & Jemigan, by C. Ernest Simons, Jr., and Steven M. Sartorio, for defendants, ap-pellees."
  },
  "file_name": "0685-01",
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}
