Strickland v. Burlington Industries, Inc.

359 S.E.2d 19, 86 N.C. App. 598, 1987 N.C. App. LEXIS 2754
CourtCourt of Appeals of North Carolina
DecidedAugust 18, 1987
DocketNo. 8610IC1273
StatusPublished
Cited by2 cases

This text of 359 S.E.2d 19 (Strickland v. Burlington Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strickland v. Burlington Industries, Inc., 359 S.E.2d 19, 86 N.C. App. 598, 1987 N.C. App. LEXIS 2754 (N.C. Ct. App. 1987).

Opinion

ORR, Judge.

I.

Defendants argue that plaintiff failed to prove that she sustained a compensable occupational lung disease, because there was no evidence that her respiratory problems were caused by her employment at Burlington Industries. We disagree.

To receive benefits for an occupational disease under the Workers’ Compensation Act, N.C.G.S. Chapter 97, there must be a causal connection between the plaintiffs disease and her employment. Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E. 2d 359, 365 (1983).

In the case sub judice, plaintiff used the expert opinion testimony of Dr. Rubin to prove the causal connection between her injury and her employment conditions. An expert witness may base his testimony on his personal knowledge or observation or on hypothetical questions addressed to him. Todd v. Watts, 269 N.C. 417, 152 S.E. 2d 448 (1967). When a party uses a hypothetical question, that question must:

(1) list only such facts as are directly in evidence or may justifiably be inferred therefrom, (2) list enough facts to allow the witness to express an intelligent and safe opinion, and (3) make it clear that the opinion is based on the hypothesis that the facts listed will be found by the [jury] to exist. 1 Stans-bury, North Carolina Evidence, Sec. 137 (Brandis Rev. 1982).

Ballenger v. ITT Grinnell Industrial Piping, 80 N.C. App. 393, 399-400, 342 S.E. 2d 582, 587 (1986) (emphasis supplied).

Plaintiffs attorney asked Dr. Rubin several hypothetical questions, all based upon the same set of hypothetical facts. As stated, these facts were:

That Ms. Mary Aleñe Strickland was born on April 19, 1921, and began working for what is now Burlington Industries in about late 1944, and worked for about six months as a winder, and that cotton was the material being processed, and it was dusty.
She returned to work with Burlington Industries in 1952 in the spool room, where she worked until November of 1970, at [602]*602which time she left. Cotton was the material being processed during this period, and the conditions were dusty then.
Beginning approximately 1956, she began noticing periods of bronchitis with the production of sputum. Her symptoms were brought on by exposure at work, and would improve upon leaving work, especially on the weekends.
She had shortness of breath and cough, which was made worse by return to work on Monday morning. Her symptoms progressed to the point where, before she left work in 1970, it in her opinion, limited her ability to do her job. The patient still produces sputum, and she had no breathing problems prior to going to work at Burlington Industries. She had never smoked cigarettes.

Based on these facts Dr. Rubin testified through a series of hypothetical questions that in his opinion, plaintiffs exposure to cotton dust at Burlington Industries could have caused her lung disease and lung impairment.

Defendants argue that Dr. Rubin’s opinion testimony should be stricken and not considered as evidence because the stated facts were incomplete and inaccurate regarding plaintiffs condition and her work history. For instance, defendants contend that the facts did not include any information on plaintiffs exact exposure to cotton dust at Burlington Industries or whether she was exposed to cotton dust at Bonder’s. In addition, the facts do not state that plaintiff quit her jobs at Burlington Industries and at Bonder’s because of her arthritis and not because of her lung impairment. However, “the omission of a material fact from a hypothetical question does not necessarily render the question objectionable, or the answer incompetent. ... It is left to the cross-examiner to bring out facts . . . that have been omitted [from the hypothetical question] and thereby determine if their inclusion would cause the expert to modify or reject his or her earlier opinion.” Ballenger v. ITT Grinnell Industrial Piping, 80 N.C. App. at 400, 342 S.E. 2d at 587.

The Industrial Commission’s findings of fact in a workers’ compensation award are conclusive and binding on appeal if they are supported by the evidence. Hilliard v. Cabinet Co., 54 N.C. App. 173, 282 S.E. 2d 828 (1981) rev’d on other grounds, 305 N.C. [603]*603593, 290 S.E. 2d 682 (1982). We hold that the evidence in the case sub judice supports the Commission’s finding of fact that plaintiff has the occupational disease byssinosis as a result of her exposure to cotton dust at Burlington Industries.

Defendants also argue that plaintiff has not sustained a com-pensable occupational disease, because the evidence fails to show that there was any permanent injury to plaintiffs lungs. We find this contention to be without merit.

In order to recover for an injury under N.C.G.S. § 97-31(24), a plaintiff “must show from medical evidence that he has loss of or permanent injury to an important external or internal organ . . . .” Porterfield v. RPC Corp., 47 N.C. App. 140, 142-43, 266 S.E. 2d 760, 762 (1980) (emphasis supplied).

Defendants argue that the damage to plaintiffs lungs is not permanent, because Dr. Rubin testified that plaintiff is still capable of ordinary activity and that her lung impairment is reversible. However, Dr. Rubin also testified that the damage to plaintiffs lungs was permanent and stated that:

Once there is damage to the airways, the airways are damaged permanently. You may be able to return the physiology, the functioning of the airways, close to normal. But the structural abnormality persists.

From this testimony we hold that the Commission’s finding that damage to plaintiffs lungs was permanent was adequately supported by the evidence and is therefore binding upon this Court.

II.

Plaintiff argues that the Industrial Commission erred in basing its award on N.C.G.S. § 97-31, the scheduled damage provision, rather than on N.C.G.S. § 97-29, the wage loss provision.

Before compensation may be awarded under N.C.G.S. § 97-29, N.C.G.S. § 97-30 or N.C.G.S. § 97-31, of the Workers’ Compensation Act, “disability” must exist. West v. Bladenboro Cotton Mills, 62 N.C. App. 267, 302 S.E. 2d 645 (1983). Disability is defined by the Workers’ Compensation Act as the incapacity to earn wages because of injury, rather than physical disablement or impairment. N.C.G.S. § 97-2(9) (1985). The Supreme Court has fur[604]*604ther stated that in order to find disability the Industrial Commission must find:

(1) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in the same employment, (2) that the plaintiff was incapable after his injury of earning the same wages he earned before his injury in any other employment, and (3) that the plaintiffs incapacity to earn was caused by his injury.

Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E. 2d 374, 379 (1986).

In the case sub judice the Industrial Commission found as a fact that:

Plaintiff has a permanent disability as a result of the occupational disease byssinosis in that she has permanent injury to two important internal organs, the lungs.

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359 S.E.2d 19, 86 N.C. App. 598, 1987 N.C. App. LEXIS 2754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strickland-v-burlington-industries-inc-ncctapp-1987.