{ "id": 8525370, "name": "JAMES K. PERRY, Employee, Plaintiff v. BURLINGTON INDUSTRIES, INC., Employer, and AMERICAN MOTORISTS INSURANCE COMPANY, Carrier, Defendants", "name_abbreviation": "Perry v. Burlington Industries, Inc.", "decision_date": "1986-05-20", "docket_number": "No. 8510IC1112", "first_page": "650", "last_page": "655", "citations": [ { "type": "official", "cite": "80 N.C. App. 650" } ], "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": "256 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "196, 200" } ], "opinion_index": 0 }, { "cite": "297 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571831 ], "year": 1979, "pin_cites": [ { "page": "468, 475" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0458-01" ] }, { "cite": "283 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "301 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "369-70" }, { "page": "370" }, { "page": "369-70", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "101" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "339 S.E. 2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "491" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520586 ], "year": 1986, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0324-01" ] } ], "analysis": { "cardinality": 618, "char_count": 12777, "ocr_confidence": 0.832, "pagerank": { "raw": 1.0131033812585634e-07, "percentile": 0.5426816389681406 }, "sha256": "2ba2d4b2b0c97b115b366f58ae86c9374870106746f965331ec3d6f2f187012a", "simhash": "1:9462fff827352084", "word_count": 2006 }, "last_updated": "2023-07-14T15:01:08.586003+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and COZORT concur." ], "parties": [ "JAMES K. PERRY, Employee, Plaintiff v. BURLINGTON INDUSTRIES, INC., Employer, and AMERICAN MOTORISTS INSURANCE COMPANY, Carrier, Defendants" ], "opinions": [ { "text": "WHICHARD, Judge.\nDefendants contend the commission erred in finding and concluding that plaintiff is totally and permanently disabled as a result of a compensable occupational disease. We find sufficient evidence from which the commission could conclude that plaintiff suffers from an occupational disease.\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 . . . 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. . . . (Citations omitted.)\nGay v. J. P. Stevens & Co., Inc., 79 N.C. App. 324, 325, 339 S.E. 2d 490, 491 (1986).\nThe evidence before the Commission, in pertinent part, tended to establish the following:\nPlaintiff initially worked for defendant-employer for approximately four years as a weaver. He was then unemployed for an unspecified period, after which he again worked for defendant-employer as a loom fixer in its weave room from 4 June 1957 through 4 October 1983.\nWhile the dust conditions in the weave room changed four or five years before plaintiff left the mill, during most of his employment the air in the room Was \u201creal dusty.\u201d Plaintiff testified: \u201cIt was like a fog in there sometimes.\u201d He further testified that as a loom fixer he worked \u201cabove, beside and under a loom,\u201d and that there \u201cwas lint under the looms a foot and a half or two foot deep \u2014 dust or whatever.\u201d\nBefore conditions improved plaintiffs clothes would have dust all over them by the end of a work shift. There were blowers \u201cgoing around [which] kept dust in the air all the time.\u201d Twice a week a man with an air hose blew off the looms. When that occurred the air in plaintiffs work area \u201cwould be real dusty.\u201d Plaintiff testified: \u201cIt would be like a snow where he was working.\u201d\nBefore he went to work for defendant-employer plaintiff had no breathing problems. By the time defendant-employer made the changes in the weave room plaintiffs breathing \u201cwas bad.\u201d He first noticed symptoms of a breathing problem twelve to fifteen years prior to the hearing on this claim. He would be in the plant working when he noticed these symptoms. By the end of a work shift he would \u201cbe in pretty bad shape.\u201d His chest would \u201ctighten up\u201d and he \u201ccouldn\u2019t halfway breathe.\u201d He could always breathe better when he was not in the plant, and his breathing was better during weekends and vacations.\nIn 1981 plaintiff went to Dr. Ted R. Kunstling about his breathing. He did not go of his own choice but was sent by defendant-employer. At that time plaintiff was less than fully candid in describing his condition to Dr. Kunstling because he was afraid he would lose his job if the doctor \u201cfound a lot wrong with [him].\u201d When he subsequently returned after the doctor \u201chad already taken [him] out of the plant,\u201d he \u201cfelt more free to talk to him.\u201d At that time Dr. Kunstling advised him that his breathing problems were work related.\nPlaintiff can only walk \u201cmaybe a block\u201d without having to stop to catch his breath. It is \u201cabout impossible\u201d for him to climb stairs because he \u201cgive[s] out\u201d of breath. He formerly had his own band but \u201cgot to where [he] couldn\u2019t do it.\u201d He no longer mows grass or rakes leaves at his home because he does not have the breath to do it.\nThe planning manager of the plant where plaintiff worked corroborated plaintiffs testimony about the dust conditions in the weave room prior to the changes that were made four or five years before plaintiff left the mill. He testified: \u201c[TJhere was dust out there. [Plaintiffs] testimony, based on what I saw, was accurate. ... I don\u2019t quite agree with the amount of lint he said was under the loom. That\u2019s the only thing I\u2019d have to disagree on.\u201d He further testified:\nI am familiar with what a loom fixer does. In the course of his job, a loom fixer has to spend most of his time working around the loom or under the loom. He would have as dusty a job as anybody in the weave room. The dustiest, if he\u2019s working around or under the looms all the time.\nDr. Kunstling, a member and former chairman of the North Carolina Industrial Textile Occupational Disease Panel, testified that plaintiff suffered from \u201csevere chronic obstructive pulmonary disease with elements of asthma, chronic bronchitis, emphysema, and probably byssinosis, caused and/or exacerbated by occupational exposure to cotton dust, cigarette smoking and respiratory infection; number two, chronic rhinosinusitis.\u201d He further testified, in response to a hypothetical question which encompassed facts stated above and others, that a person in plaintiffs employment situation was at greater risk of contracting chronic obstructive pulmonary disease than others without similar exposure. In his opinion plaintiffs occupation \u201cdid contribute significantly to his . . . chronic obstructive lung disease.\u201d He stated: \u201cUnder the AMA guidelines, it would appear that [plaintiff] would have Class IV respiratory impairment, that he would be totally disabled. Class IV is the most severe degree of impairment.\u201d\nOn cross-examination, when asked to assume that only fifteen percent of the material run in the weave room where plaintiff worked was cotton blends, and the other eighty-five percent was synthetics, Dr. Kunstling testified:\n[GJiven that history my assumption is that that was a significant occupational exposure to cotton dust that did contribute to [plaintiffs] lung disease. . . . [M]y assumption is that whether you have 100 percent cotton or . . . cotton and synthetic blended together you\u2019re still processing the cotton in a similar fashion and therefore you are running the risk of creating a dangerous environment in terms of levels of cotton dust in the environment. . . . [E]ven considering all those things ... I do feel that his environment, particularly during the earlier years of his employment, did contribute to the development of his current condition. . . . [E]ven though the work environment may now be relatively safe ...[,] [h]e has lung function impairment that . . . appears to me to be sufficiently severe that he is unable to perform the job.\nFinally, plaintiff testified that he started smoking cigarettes when he was seventeen or eighteen years old and quit a little over a year prior to the hearing on this claim. He was fifty years old at the time of the hearing. He smoked \u201c[m]aybe three-fourths of a pack [a day], something like that.\u201d Dr. Kunstling testified on cross-examination that plaintiffs \u201csmoking [was] probably a more significant contributing factor than his occupation.\u201d\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.\n[T]here are three elements necessary to prove the existence of a compensable \u201coccupational disease\u201d: (l) the disease must be characteristic of a trade or occupation, (2) the disease [must not be] an ordinary disease of life to which the public is equally exposed outside of the employment, and (3) there must be proof of causation, ie., proof of a causal connection between the disease and the employment.\nHansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E. 2d 101, 105-06 (1981), citing Booker v. Medical Center, 297 N.C. 458, 468, 475, 256 S.E. 2d 189, 196, 200 (1979).\nThe evidence, considered in light of the foregoing legal principles, is sufficient to support the Commission\u2019s findings that: plaintiff has experienced long-term exposure to causes and conditions which are characteristic of, and peculiar to, the cotton textile industry and which are known to result in chronic obstructive pulmonary disease; workers exposed long term to cotton dust in the textile industry generally are at an increased risk of developing or augmenting chronic obstructive pulmonary diseases than are members of the general public; plaintiffs occupational exposure to cotton dust was a significant causal factor in the development of his chronic obstructive pulmonary disease; and plaintiff has been totally disabled as a result of his chronic obstructive pulmonary disease since he left defendant-employer\u2019s employment. These findings support the legal 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 obstructive pulmonary disease than members of the public generally and that occupational exposure substantially contributed to development of the disease. Rutledge, supra. The extent of cotton dust in plaintiffs work environment and its potentially harmful effect on the respiratory system were well established. Dr. Kunstling\u2019s testimony amply established the causal connection between plaintiffs disease and his work environment and that his occupation contributed significantly to his disease.\nWe find no merit in defendants\u2019 contention that Dr. Kun-stling\u2019s cross-examination testimony that plaintiffs cigarette smoking was \u201cprobably a more significant contributing factor than his occupation\u201d compels the conclusion that plaintiff does not have a compensable occupational disease. So long as the employment \u201csignificantly contributed to, or was a significant causal factor in, the disease\u2019s development,\u201d an occupational disease is compensable under N.C. Gen. Stat. 97-53(13). Rutledge, 308 N.C. at 101, 301 S.E. 2d at 369-70 (emphasis supplied). The evidence amply establishes that plaintiffs employment was a significant causal factor in the development of his disease.\nAffirmed.\nJudges Wells and COZORT concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Law Offices of Paul J. Michaels, P.A., by John Alan Jones, for plaintiff appellee.", "Smith, Moore, Smith, Schell & Hunter, by J. Donald Cowan, Jr., and Caroline Hudson, for defendant appellants." ], "corrections": "", "head_matter": "JAMES K. PERRY, Employee, Plaintiff v. BURLINGTON INDUSTRIES, INC., Employer, and AMERICAN MOTORISTS INSURANCE COMPANY, Carrier, Defendants\nNo. 8510IC1112\n(Filed 20 May 1986)\nMaster and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 occupational lung disease \u2014exposure to cotton dust\nEvidence was sufficient to support an award of workers\u2019 compensation for an occupational lung disease caused by exposure to cotton dust in the workplace, and expert medical testimony that plaintiff s cigarette smoking was \u201cprobably a more significant contributing factor than his occupation\u201d did not compel the conclusion that plaintiff did not have a compensable occupational disease, since, so long as the employment significantly contributed to or was a significant causal factor in the disease\u2019s development, the occupational disease was compensable under N.C.G.S. \u00a7 97-53(13).\nAPPEAL by defendants from opinion and award of the North Carolina Industrial Commission filed 27 June 1985. Heard in the Court of Appeals 13 February 1986.\nPlaintiff seeks workers\u2019 compensation for occupational lung disease allegedly caused by exposure to cotton dust in the workplace. The hearing commissioner found that plaintiff has experienced long-term exposure to causes and conditions which are characteristic of, and peculiar to, the cotton textile industry and which are known to result in chronic obstructive pulmonary disease, and that workers so exposed are at an increased risk over members of the general public of developing or accelerating chronic obstructive pulmonary diseases. She further found that plaintiffs occupational exposure to cotton dust was a significant causal factor in the development of his chronic obstructive pulmonary disease. She entered conclusions of law that plaintiffs disease is due to causes and conditions characteristic of and peculiar to the textile industry, is not an ordinary disease of life to which the general public is equally exposed, and is therefore an occupational disease. She further concluded that plaintiff is totally incapacitated for work and is entitled to workers\u2019 compensation.\nThe Full Commission adopted the decision of the hearing commissioner. Defendants appeal.\nLaw Offices of Paul J. Michaels, P.A., by John Alan Jones, for plaintiff appellee.\nSmith, Moore, Smith, Schell & Hunter, by J. Donald Cowan, Jr., and Caroline Hudson, for defendant appellants." }, "file_name": "0650-01", "first_page_order": 678, "last_page_order": 683 }