SHIRLEY HARRIS,
Employee-Plaintiff,
v
.
North Carolina Industrial
Commission
BARBOUR THREADS, INC., I.C. No. 948387
Employer-Defendant,
and
KEMPER INSURANCE COMPANY,
Carrier-Defendant.
Ganly, Ramer & Strom, by Thomas F. Ramer, for plaintiff-
appellee.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by W. Kevin
McLaughlin, for defendant-appellants.
EAGLES, Chief Judge.
Defendants appeal from an Opinion and Award of the full
Industrial Commission awarding workers' compensation benefits to
plaintiff.
The record tends to establish the following: At the time of
her injury, plaintiff was 59 years old and had been employed in the
throwing department of defendant's Hendersonville plant for
approximately fourteen years. From 1996 to 1999, plaintiff workedas the lead person in the throwing department. Plaintiff's primary
job was to oversee the operation of thread processing machines.
Part of plaintiff's job required her to load spools of raw,
unprocessed thread onto the processing machines, a procedure called
“creeling.” Each machine held 86 spools of raw thread. On average,
each spool of raw thread weighed between three and one-half to four
pounds and was approximately fifteen inches in length. Depending
upon the type of thread used, however, some spools could weigh as
much as ten or twenty pounds each. The thread itself was wound
around a metal tube called a “perm,” which protruded approximately
one inch beyond the end of the thread and was approximately three
to five inches in diameter. “Creeling” consisted of plaintiff
removing the empty perm from the machine; grasping the full perm
between the thumb and index finger of her right hand so that she
did not touch the thread; raising the spool to approximately eye
level and placing it on the machine with her arms fully extended in
front of her. Once all 86 tubes had been replaced, a process which
took approximately twenty minutes to complete, plaintiff laced the
thread through and restarted the machine. When the machine was
operating smoothly, plaintiff moved to another machine and repeated
the loading procedure.
Plaintiff was also required to unload the spools of finished
thread from the machines she had previously loaded, a procedure
called “doffing.” Each machine held “ninety-six” spools of finished
thread. On average, each spool of finished thread weighed between
three and one-half to ten pounds. Plaintiff unloaded the machinesin much the same way she loaded them, by reaching out at eye level
and grasping the perm with her right hand, lifting it from the
machine and unlacing the thread with her left hand.
Plaintiff worked 12 hour shifts, averaging 43 hours per week.
During a typical 12 hour shift, plaintiff would load a machine
approximately three to four times; plaintiff would unload a machine
as many as five times per shift. Plaintiff was allowed four 15
minute breaks and one 30 minute meal break per shift. Apart from
these breaks, plaintiff “continuously” loaded and unloaded thread
from her machines.
In 1998, plaintiff began complaining of pain in her neck and
lower back, as well as swelling and weakness in her right arm and
hands. From June 1998 to June 2000, plaintiff was examined by seven
separate physicians and was ultimately diagnosed with mild carpel
tunnel syndrome, cervical spondylosis and myofascial pain syndrome.
Plaintiff filed a notice of injury with defendant seeking workers'
compensation benefits, but defendant denied compensability. Both
the Deputy Commissioner and the full Commission concluded that
plaintiff had suffered a compensable occupational disease and
awarded plaintiff workers' compensation benefits. Defendant
appeals.
The sole issue presented by this appeal is whether the
evidence before the Industrial Commission was sufficient, as a
matter of law, to support its findings and conclusion that
plaintiff's disease was causally related to her employment. At the outset, we note that our review of appeals from the
Industrial Commission is limited to determination of “(1) whether
there was any competent evidence before the Commission to support
its findings of fact; and (2) whether the Commission's findings of
fact justify its legal conclusions and decision.” Sanderson v.
Northeast Constr. Co., 77 N.C. App. 117, 120-21, 334 S.E.2d 392,
394 (1985). The Commission's findings of fact are conclusive on
appeal if they are supported by any competent evidence, even where
there is evidence that would support a finding to the contrary. Id.
at 121, 334 S.E.2d at 394.
In order to prove the existence of a compensable occupational
disease, a claimant must establish three elements:
(1) the disease must be characteristic of a trade or
occupation, (2) the disease is not an ordinary disease of
life to which the public is equally exposed outside of
the employment, and (3) there must be proof of causation,
i.e., proof of a causal connection between the disease
and the employment.
Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E.2d 101, 106
(1981). “[W]here the exact nature and probable genesis of a
particular type of injury involves complicated medical questions
far removed from the ordinary experience and knowledge of laymen,
only an expert can give competent opinion evidence as to the cause
of the injury.” Click v. Freight Carriers, 300 N.C. 164, 167, 265
S.E.2d 389, 391 (1980). However, where the expert's opinion is
based upon a hypothetical question that required the expert to
assume the truth of facts that the record fails to support, it is
incompetent to support the Commission's finding that plaintiff's
injury was causally related to his employment. Thacker v. City ofWinston-Salem, 125 N.C. App. 671, 675, 482 S.E.2d 20, 23, disc.
review denied, 346 N.C. 289, 487 S.E.2d 571 (1997).
During the hearing, the Commission received the deposition
testimony of four of plaintiff's physicians. Two of plaintiff's
physicians, Dr. Andrew Rudins and Dr. Eric Rhoton, were asked to
render an opinion as to whether plaintiff's diseases were causally
related to her employment. Prior to giving his opinion, plaintiff's
counsel asked Dr. Rudins to assume the following:
If the evidence were to be found by the Industrial
Commission that Miss Harris' job required her -- her job
was listed as a lead throwing -- or throwing lead person;
that her job required her to reach and grasp spools of
thread that were fourteen inches long by three inches
wide where she would have to reach and grasp between her
thumb and her fingers these spools, which weigh three and
half [sic] to four pounds; that she would then grasp
those, reach with her arms outstretched and place those
on guides on machines, the machine having eighty-six such
holders that are approximately at eye level;
That she did that along with reaching up and
replacing empty spools or tubes; and that in replacing
the empty spools they might weigh as much as ten to
twenty pounds;
And that when she wasn't doing those two activities,
she was unloading wound thread with the same length of
tubes, but these spools weighed three and a half to ten
pounds;
And that she performed these types of activities for
a twelve hour day where she had four fifteen minute
breaks and one thirty minute dinner break.
Based on these assumptions, Dr. Rudins opined that plaintiff's
job duties would place her at an “increased risk of developing” and
“would be a significant contributing factor” to the diseases with
which she had been diagnosed. Dr. Rhoton rendered a similar opinion
in response to a similar factual scenario. After finding factsconsistent with those posed to Drs. Rudins and Rhoton, the
Industrial Commission found and concluded that the “competent
evidence in the record supports a finding that plaintiff's carpal
tunnel syndrome and myofascial pain syndrome . . . were caused or
significantly aggravated by plaintiff's job duties . . . .”
Defendant argues that this case is identical to and controlled
by Thacker. Specifically, defendant argues that the opinions of
both Dr. Rhudins and Dr. Rhoton were based upon hypothetical facts
that were unsupported by any evidence in the record. In support,
defendant directs this Court to the testimony of Violet Louise
Brooks, a former employee of defendant and co-worker of plaintiff.
During cross examination, Ms. Brooks testified as follows:
Q: Okay. Well, in general -- and I realize it varies
from day-to-day, but ---
A: Right.
Q: --- in general, how much time or what percentage of
the day would you spend doffing or creeling?
A: At least fifty percent of the day a lot of time. I
mean we went continuously.
Defendant argues that this testimony supports a finding that
plaintiff performed doffing and creeling tasks for, at most, one-
half of her workday which translates into approximately six hours.
Since the opinions of both Dr. Rhudins and Dr. Rhoton were based
upon ten and one-half hours of doffing and creeling per day,
defendant argues they were based upon hypothetical facts that were
unsupported by any evidence in the record. We disagree.
Contrary to defendant's assertion, the facts of this case are
distinguishable from those in Thacker. In Thacker, the witness wasasked to render an opinion based on the assumption that plaintiff
was thrown head-first into the roof of the car he was driving upon
impact, a fact for which there was no evidentiary support. 125 N.C.
App. at 675-76, 482 S.E.2d at 23. Here, unlike Thacker, plaintiff's
testimony directly supported each fact that Drs. Rudins and Rhoton
were asked to assume in rendering their opinions. Moreover, the
Commission made detailed findings of fact that were consistent with
both plaintiff's testimony and the facts presented to Drs. Rudins
and Rhoton. It is immaterial here that Ms. Brooks' testimony could
have supported findings to the contrary. Since there is competent
evidence in the record to support the Commission's findings with
respect to the hours worked by plaintiff and the duties she
performed, their findings are conclusive on appeal. Accordingly,
this assignment of error is overruled.
We hold that there is competent evidence in the record to
support the Industrial Commission's findings of fact, and that
these findings justify its legal conclusions and decision.
Accordingly, the Opinion and Award of the Industrial Commission is
affirmed.
Affirmed.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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