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  "name_abbreviation": "Gay v. J. P. Stevens & Co.",
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    "judges": [
      "Chief Judge Hedrick and Judge Johnson concur."
    ],
    "parties": [
      "ROBERT F. GAY, Employee, Plaintiff v. J. P. STEVENS & CO., INC., Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendants contend the Commission erred in concluding that plaintiff suffers from an occupational disease compensable under N.C. Gen. Stat. 97-53(13). Alternatively, they contend that plaintiff was not injuriously exposed while in defendant-employer\u2019s employment and that the Commission erred in failing so to determine. We find sufficient evidence from which the Commission could conclude that plaintiff suffers from an occupational disease. We also find sufficient evidence from which the Commission could have concluded that plaintiff was last injuriously exposed to the causes of that disease while in defendant-employer\u2019s employment; however, we find the Commission\u2019s findings of fact and conclusions of law insufficient to support such a determination.\nAppellate review of decisions of the Industrial Commission is limited to a determination of \u201cwhether there was competent evidence before the Commission to support its findings and . . . whether such findings support its legal conclusions.\u201d McLean v. Roadway Express, 307 N.C. 99, 102, 296 S.E. 2d 456, 458 (1982). This Court cannot substitute its judgment for that of the Commission. Thus, when supported by competent evidence, findings of fact made by the Commission are conclusive on appeal. Id.; see also Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E. 2d 458, 463 (1981).\nThe evidence before the Commission tended to establish the following:\nIn 1947 plaintiff was employed by Old Scotland Mills. For approximately two years he worked in Scotland Mills\u2019 dye house operating a dryer which dried bedspreads that were wet from the dyeing process.\nPlaintiff was next employed in the textile industry by Dixian-na Rug Company in 1953. He worked in its warehouse for approximately five years \u201cshipping rolled goods out of the warehouse.\u201d\nIn July 1958 plaintiff was again employed by Scotland Mills to work in the dye house located at its airbase facility. Spring Mills later purchased Scotland Mills. Plaintiff, however, continued to work in the dye house at the airbase facility. While there plaintiff worked for an unspecified period as a dryer, mixing dry or paste dye with water and adding it by hand to open dye tubs.\nIn January 1973 plaintiff was transferred to Spring Mills\u2019 Crandall plant. There he initially worked as a tub dumper, dumping wet bedspreads into an extractor which forced the water from the bedspread. Later he worked as a dye mixer, combining powdered dyes with liquids and heating the mixture. The dyes emitted visible dust as they were poured into open containers.\nPlaintiff next worked as a tub operator. He loaded bedspreads into machines which functioned much like washers but were used to treat bedspreads with chemicals and heat to prepare them for the dyeing process. Plaintiff was exposed to the steam which emerged as the tub lids were opened.\nFrom June 1974 until August 1974 plaintiff operated the machines in which finished bedspreads were dried. He was again exposed to steam when the dryers were opened.\nOn 4 August 1974 defendant-employer purchased the Cran-dall plant and began phasing out dyeing operations. Plaintiff continued to work in the dye house until 28 August 1974, when operations ceased. From then until he was \u201claid off\u201d in December 1974, he worked as a yard man. On perhaps three occasions plaintiff transported barrels of old chemicals and dyes to a landfill and dumped them.\nRalph Askill, superintendent of dyes for defendant-employer, described the Crandall dye house as follows:\nThe approximate area of the bedspread area in the dye house is 72,000 square feet and is one continuous open area with the exception of a mezzanine. The extractors were located directly under the mezzanine. The dye tubs were located on the one side of the mezzanine and the dryers were located on the opposite side of the dye tubs. The dryers were on the ground floor. The extractors were also on the ground floor. The tubs were on the ground floor with a raised platform behind them where they did all the loading and the dye tubs began. The mixing was done above the ground floor in the dye room. It is located on the mezzanine probably 10 to 12 feet above the top of the extractors. It was over the dye tubs and about the same distance above the dye tubs that the extractors were from the dye tubs. This would be about 10 or 12 feet above the dye tubs. The extractors were probably 10 to 15 feet from the dye tubs, with the dryers being located about the same distance from the extractors. The platform I have described was approximately 12 feet above the ground floor. . . .\nThe mezzanine is approximately in the center of the room. The extractor and the dryer are underneath. The distance between the mezzanine and the dryer was about 12 to 15 feet. The mezzanine was approximately 100 feet long. On the mezzanine was an enclosed drug room for the weighing of dye stuff. The remainder of it was opened with a wall approximately 5 to 6 feet high.\nThis evidence tends to indicate that someone working in the dye house would be exposed to the hazards of all phases of the dyeing process.\nPlaintiff returned to work for defendant-employer in April 1975. From then until his retirement in July 1978 he worked in a warehouse handling finished products. The area was dusty due to the movement of products and boxes which had been stored for several months.\nMany of the chemicals used by plaintiff\u2019s employers in the dyeing process are identified as respiratory irritants in Material Safety Data Sheets which were introduced into evidence. Although wearing a mask or other respiratory protective device when working with many of the chemicals in the dye house is recommended, plaintiff never wore such a device.\nThe following chemicals were used by plaintiff\u2019s employers in the dye houses: sodium hypochlorite, peroxide, sodium hydrosul-fite (in powder form), acetic acid, soap flake, sodium carbonate, Cassofic FRW 3000, caustic soda, and chlorine. The evidence showed the following regarding these chemicals: Sodium hypo-chlorite was used in approximately twenty-five percent of the dye batches. When sodium hypochlorite is heated or comes in contact with acid, it emits toxic chlorine fumes. Hypochlorite solutions can be corrosive to the skin and mucous membranes. Vapors from peroxide are highly irritating to skin, eyes and respiratory passages. Respiratory protection is recommended with its use. Sodium hydrosulfite powder was used in the dyeing process and in cleaning machines. It is recommended that a dust mask be worn when handling hydrosulfite powder. Inhalation of the vapors emitted by acetic acid can cause coughing, chest pain and irritation of the nose and throat. Soap flake, sodium carbonate and Cassofic FRW 3000 are mild irritants to skin, eyes and mucous membranes. Inhalation of dust from these granular solids should be avoided. Overexposure to caustic soda is hazardous to skin, eyes and respiratory passages. The use of a safety mask is recommended to protect against the inhalation of the toxic dust and fumes caustic soda emits.\nHealth records maintained by plaintiff\u2019s employers indicate that in January 1967 he was burned when he opened a valve on a tank and caustic soda splashed in his nose. In 1973 plaintiff suffered a second caustic soda burn under his left eye.\nOther incidents documented in plaintiff\u2019s health records further indicate the extent to which he came in direct contact with the chemicals used in the dyeing process. In 1967 plaintiff injured his finger attempting to untangle a bedspread caught in a dye tub. In 1968 he slipped and sprained his shoulder when a dye tub overflowed. In 1969 plaintiff was treated for chlorine in his ear. In 1971 all employees were evacuated due to a chlorine gas leak. Plaintiff was treated for inhalation of chlorine gas. He was given oxygen, an eyewash, and medication. Defendant-employer\u2019s superintendent did not recall the evacuation of employees due to a gas leak, but did \u201crecall occasions in which chlorine gas . . . escape[d].\u201d\nThree physicians testified concerning plaintiffs condition. Each diagnosed plaintiff as suffering from chronic obstructive lung disease. In their opinions his condition is permanent and totally disabling. Two of the physicians, Drs. Woolfolk and Hayes, were under the mistaken impression that plaintiff had worked in a cotton mill and had been exposed to cotton dust for an extended period of time. Thus, they were not prepared to testify concerning the existence of a causal link between plaintiffs actual work environment and his obstructive lung disease. After being informed of the nature of plaintiffs employment and the chemicals involved, however, Dr. Woolfolk testified:\nIf [plaintiff] were exposed to anything that contained chlorine, which is a toxic substance to the lungs, I think it would be extremely significant. It would be significant as causing pulmonary disease, breaking down various lung tissues. ... It is my opinion that an individual exposed to chlorine or other substances in the dye house would be at an increased risk than individuals not exposed.\nThe third physician, Dr. Khodaparst, testified that in his opinion plaintiffs work environment was a \u201cpossible . . . causative agent\u201d and that \u201cit is probable that [it] aggravated his disease.\u201d Dr. Khodaparst particularized as follows:\nWell, its chlorine gas. . . . [Cjhlorine could cause severe airway inflammation and destruction and I\u2019m not putting chlorine as the causative agent, but I would say it is possible one of these gases . . . initially caused airway disease and continuous exposure has aggravated and continuous destruction, thereon, went on and caused this disease.\nDr. Khodaparst explained that while it is possible that claimant\u2019s occupational exposure was the \u201c[i]nitial factor which produced inflammation of the lung and destruction and changes ...[,] as he worked it is probable . . . that . . . other fume[s] and gases or dust he was exposed to aggravated\u201d the disease. When asked whether plaintiff\u2019s occupational exposure \u201cplaced him at an increased risk of aggravation of obstructive lung disease . . . beyond members of the general public not so exposed,\u201d Dr. Khodaparst responded, \u201c[pjrobably, yes.\u201d\nPlaintiff is a nonsmoker. Except for his occupation, Dr. Khodaparst found no \u201cother factors present in [plaintiff\u2019s] history which could account for his obstructive lung disease as severe as it is.\u201d Dr. Khodaparst testified as follows regarding plaintiff\u2019s occupational exposure while in defendant\u2019s employment:\nMy opinion as to whether it is probable that [plaintiff\u2019s] exposure in his employment aggravated his obstructive lung disease up until the date he last worked in 1979 is . . . when he came to the hospital and was told to go back to his work, what he used to do. He clearly told me that \u201cDoc, I can\u2019t go to work, it makes my breathing worse and it causes my symptoms \u2014my shortness of breath to be worse. I can\u2019t go back to that same job.\u201d . . .\n* * *\nIf someone has lung disease, asthma or chronic bronchitis, exposure to dust, it could aggravate the disease if one was working in a warehouse, depending on what kind of warehouse it was. It is probable that certain warehouses aggravate the patient\u2019s illness. . . .\nA disease is an occupational disease compensable under N.C. Gen. Stat. 97-53(13) if claimant\u2019s employment exposed him \u201cto a greater risk of contracting this disease than members of the public generally . . .\u201d and such exposure \u201csignificantly contributed to, or was a significant causal factor in, the disease\u2019s development.\u201d Rutledge v. Tultex Corp., 308 N.C. 85, 101, 301 S.E. 2d 359, 369-70 (1983). Ultimately, the Commission must determine \u201cwhether the occupational exposure was such a significant factor in the disease\u2019s development that without it the disease would not have developed to such an extent that it caused the physical disability which resulted in claimant\u2019s incapacity for work.\u201d Id. at 102, 301 S.E. 2d at 370. In determining the role claimant\u2019s occupational exposure played in the development of the disease, the Commission may consider, in addition to expert medical testimony, factual circumstances which bear on the question of causation. Id. at 105, 301 S.E. 2d at 370. Thus, the Commission may consider (1) the nature and extent of claimant\u2019s occupational exposure, (2) the presence or absence of other non-work-related exposures and components which contributed to the disease\u2019s development, and (3) correlations between claimant\u2019s work history and the development of the disease. Id. The claimant carries the burden of proving the existence of a compensable claim. Davis v. Raleigh Rental Center, 58 N.C. App. 113, 117, 292 S.E. 2d 763, 766 (1982).\nN.C. Gen. Stat. 97-57 provides that\n[i]n any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.\nIf the occupational exposure in question is such that it augments the disease process to any degree, however slight, the employer is liable. Rutledge, 308 N.C. at 89, 301 S.E. 2d at 362. In addition, the substance to which plaintiff was last injuriously exposed need not be a substance known to cause the disease. Caulder v. Waverly Mills, 314 N.C. 70, 74, 331 S.E. 2d 646, 649 (1985).\nThe evidence, considered in light of the foregoing legal principles, is sufficient to support the conclusion that plaintiff suffers from an occupational disease compensable under N.C. Gen. Stat. 97-53(13). There is ample evidence from which the Commission could conclude that plaintiffs work exposed him to a greater risk of contracting chronic pulmonary lung disease than members of the public generally and that occupational exposure substantially contributed to the disease\u2019s development. Rutledge, supra. The substances used in the dye houses and their potentially harmful effects on the respiratory system were well-documented. Dr. Kho-daparst\u2019s testimony established that the conditions of plaintiffs employment possibly caused and probably aggravated his condition, and that nothing in plaintiffs history other than his occupation could account for the severeness of his obstructive lung disease.\nDefendants contend, however, that the fact that the levels of toxic substances in the dye houses and the concentration of dust in the warehouse were never actually measured renders Dr. Khodaparst\u2019s testimony regarding the effect of these substances mere speculation. In particular, they refer to the following testimony:\nQ. [A]nd without actually knowing what type of dust or the concentration of the dust, its effect on [plaintiff] would be mere speculation on your part, wouldn\u2019t it, Doctor?\nA. Yeah, you see, I don\u2019t know the normal dust speculation.\nQ. And that\u2019s true, too, while [plaintiff] was working in the warehouse, you would, excuse me, in the dye house, as to whether or not any dyes or fumes would have any effect upon him you would first have to know the concentration of the fumes, the amount of the fumes, would you not, the kind of fumes, would you not?\nA. The kind of fumes?\nQ. Kind of fumes.\nA. It was some kind of fumes \u2014 it is kind of fumes.\nQ. And also you would have to know the amount of the concentration, wouldn\u2019t you?\nA. Sometimes, not all the time.\nQ. And for you to say that while [plaintiff] worked in a dye house, you could not accurately state that the fumes from any dyes had any effect upon him without first knowing the concentration and the type and the amount of dyes, could you doctor?\nA. Yes, that\u2019s true, but as you noted, sir, that the name of the fume now is like chlorine and carbon tetrachloride . . .\nQ. Doctor, you would first still have to know the amount of concentration of the chlorine, would you not?\nA. That\u2019s for sure. You\u2019d have to know how much.\nQ. And so any statement that you make here today, as to its effect upon [plaintiff] is mere speculation, isn\u2019t it?\nA. Yes, that\u2019s why I said possible.\nQ. It\u2019s possible.\nA. Yes.\nQ. Cause you don\u2019t know the concentration, do you? You don\u2019t know how much he inhaled or if he inhaled any, do you?\nA. I don\u2019t.\nQ. And without those figures, it\u2019s mere guess work, isn\u2019t it?\nA. A possibility.\nOur Supreme Court has rejected a similar contention under N.C. Gen. Stat. 97-53(28), which restricts an employee\u2019s recovery for loss of hearing to that resulting from sound of an intensity of more than 90 decibels. The Court responded to an employer\u2019s contention that the employee must introduce evidence that the noise level to which he was exposed exceeded ninety decibels by stating:\nIt is unreasonable to assume that the legislature intended an employee to bear the burden of making noise-level measurements during his employment in order to lay the groundwork for a worker\u2019s compensation claim. Such an interpretation of the statute would make it virtually impossible for an employee to successfully bring suit for compensation for a hearing loss, due to the difficulty he would encounter in attempting to make measurements of sound on his employer\u2019s premises. A construction of the statute which defeats its purpose \u2014 to provide a means by which employees can recover for injury due to harmful workplace noise \u2014 would be irrational and will not be adopted by this Court.\nMcCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 668, 303 S.E. 2d 795, 797 (1983).\nHere, both of the dye houses in which plaintiff worked no longer operate. It thus would be impossible for plaintiff to obtain measurements of the levels of toxic substances therein. The evidence on dye house operations \u2014 in particular, the fact that the dyes were mixed in open containers \u2014 and plaintiffs health records sufficiently demonstrate plaintiffs occupational exposure to harmful levels of respiratory irritants. We thus reject defendants\u2019 contention. McCuiston, supra.\nWe also find sufficient evidence to support a finding that plaintiff was last injuriously exposed while in defendant\u2019s employment. The Commission, however, failed to make adequate findings of fact and conclusions of law regarding claimant\u2019s last injurious exposure to the hazards of chronic obstructive lung disease. The Commission\u2019s findings and conclusions refer simply to \u201cplaintiffs exposure\u201d and \u201cplaintiffs employment,\u201d and at no time refer singularly to plaintiffs exposure while in defendant-employer\u2019s employment.\nThe Commission must make specific findings of fact as to each material fact upon which the rights of the parties depend. Wood v. Stevens & Co., 297 N.C. 636, 640, 256 S.E. 2d 692, 695 (1979); Moore v. Stevens & Co., 47 N.C. App. 744, 749, 269 S.E. 2d 159, 162 (1980), disc. rev. denied, 301 N.C. 401, 274 S.E. 2d 226 (1980). In the absence of findings of fact sufficient to enable this Court to determine the rights of the parties, the cause must be remanded to the Commission for proper findings. Young v. Whitehall Co., 229 N.C. 360, 369, 49 S.E. 2d 797, 803 (1948); Moore, 47 N.C. App. at 749, 269 S.E. 2d at 162.\nWhile in defendant-employer\u2019s employment, plaintiff worked in the dye house for only twenty-two and a half days, during which the dyeing operations were winding down. Plaintiffs only other exposure to the chemicals used in the dye house was while transporting and dumping old dyes on possibly three occasions. While there was sufficient evidence from which the Commission could conclude that dusty warehouse conditions aggravated plaintiffs disease while in defendant-employer\u2019s employment, the Commission need not have reached this result. The cause thus must be remanded for a determination as to last injurious exposure.\nThe opinion and award is affirmed insofar as it determines that plaintiff has an occupational disease. The cause is remanded for a determination, based on proper findings of fact, Moore, supra, as to whether plaintiff was \u201clast injuriously exposed\u201d while in the employment of defendant-employer. The Commission may receive additional evidence for that purpose and enter new findings and conclusions as appropriate. See Parrish v. Burlington Industries, Inc., 71 N.C. App. 196, 199, 321 S.E. 2d 492, 495 (1984).\nAffirmed in part, and remanded.\nChief Judge Hedrick and Judge Johnson concur.\n. The Commission concluded that claimant\u2019s \u201cdisability is caused by and results from a disease aggravated by causes and conditions characteristic of and peculiar to plaintiffs employment.\u201d The Commission cited and adopted the language of Walston v. Burlington Industries, 304 N.C. 670, 679-80, 285 S.E. 2d 822, 828 as amended by Order, 305 N.C. 296, 297 (1982) (\u201cDisability caused by and resulting from a disease is compensable when, and only when, the disease is an occupational disease, or is aggravated or accelerated by causes and conditions characteristic of and peculiar to claimant\u2019s employment.\u201d).\nWhile it is difficult to reconcile the Rutledge test with the test articulated in Walston and relied upon by the Commission, see Mills v. Fieldcrest Mills, 68 N.C. App. 151, 155-56, 314 S.E. 2d 833, 836-37 (1984), by finding that \u201c[t]here are no other explanations or factors known that can account for the severe nature of plaintiffs lung disease other than his exposure to dust and fumes in the dye house and warehouse,\u201d the Commission essentially found that \u201cthe occupational exposure was such a significant factor in the disease\u2019s development that without it the disease would not have developed to such an extent that it caused the physical disability which resulted in claimant\u2019s incapacity for work.\u201d Rutledge, 308 N.C. at 102, 301 S.E. 2d at 370. Thus the Commission\u2019s conclusion that plaintiff suffers from an occupational disease compensable under N.C. Gen. Stat. 97-53(13) can be upheld under Rutledge. Cf. Adkins v. Fieldcrest Mills, 71 N.C. App. 621, 322 S.E. 2d 642 (1984) (findings insufficient under the Rutledge test).",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Charles R. Hassell, Jr., for plaintiff appellee.",
      "James W. Mason and Williamson, Dean, Brown & Williamson, by Andrew G. Williamson, Jr,, for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "ROBERT F. GAY, Employee, Plaintiff v. J. P. STEVENS & CO., INC., Employer; LIBERTY MUTUAL INSURANCE COMPANY, Carrier, Defendants\nNo. 8510IC442\n(Filed 18 February 1986)\n1. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 employment in dye house \u2014 respiratory illness \u2014sufficiency of evidence of occupational disease\nEvidence was sufficient to support the Industrial Commission\u2019s conclusion that plaintiff suffered from an occupational disease compensable under N.C.G.S. 97-53(13) where it tended to show that plaintiff worked for approximately 22 years in a textile dye house; the substances used in the dye house and their potentially harmful effects on the respiratory system were well documented; and an expert medical witness\u2019s testimony established that the conditions of plaintiffs employment possibly caused and probably aggravated his condition and that nothing in plaintiffs history other than his occupation could account for the severity of his obstructive lung disease.\n2. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 occupational disease-levels of toxic fumes and dust \u2014 evidence not required\nIn a workers\u2019 compensation claim where plaintiff alleged that he had an occupational disease caused by exposure to fumes and dust in the workplace, there was no merit to defendants\u2019 contention that the fact that levels of toxic substances in the dye houses and the concentration of dust in the warehouse where plaintiff worked were never actually measured rendered an expert medical witness\u2019s testimony regarding the effect of these substances mere speculation, since both of the dye houses in which plaintiff worked no longer operated and it would thus be impossible for plaintiff to obtain measurements of the levels of toxic substances therein; and the evidence on dye operations \u2014 in particular, the fact that the dyes were mixed in open containers \u2014 and plaintiffs health records sufficiently demonstrated plaintiffs occupational exposure to harmful levels of respiratory irritants.\n3. Master and Servant \u00a7 94.1\u2014 workers\u2019 compensation \u2014 last injurious exposure-insufficient findings\nThough evidence in a workers\u2019 compensation case was sufficient to support a finding that plaintiff was last injuriously exposed while in defendant\u2019s employment, the Industrial Commission failed to make adequate findings of fact and conclusions of law regarding plaintiffs last injurious exposure to the hazards of chronic obstructive lung disease.\nAppeal by defendants from opinion and award of the North Carolina Industrial Commission filed 16 August 1984. Heard in the Court of Appeals 30 October 1985.\nPlaintiff filed this workers\u2019 compensation claim on 5 September 1979, alleging that he had an occupational disease caused by exposure to dust and fumes in the workplace. The hearing commissioner concluded that plaintiff\u2019s total disability was \u201ccaused by and results from a disease that was aggravated by causes and conditions characteristic of and peculiar to plaintiff\u2019s employment\u201d and awarded compensation under N.C. Gen. Stat. 97-53(13). The Full Commission adopted the decision of the hearing commissioner.\nDefendants appeal.\nCharles R. Hassell, Jr., for plaintiff appellee.\nJames W. Mason and Williamson, Dean, Brown & Williamson, by Andrew G. Williamson, Jr,, for defendant appellants."
  },
  "file_name": "0324-01",
  "first_page_order": 352,
  "last_page_order": 363
}
