336 S.E.2d 632 | N.C. Ct. App. | 1985
Brenda Heilig THOMASON, Employee Plaintiff,
v.
FIBER INDUSTRIES, Employer,
Northwestern National Insurance Company, Carrier Defendants.
Court of Appeals of North Carolina.
*633 Corriher, Whitley & Busby by James A. Corriher, Salisbury, for plaintiff-appellee.
Brinkley, Walser, McGirt, Miller & Smith by G. Thompson Miller, Lexington, for defendant-appellants.
PHILLIPS, Judge.
The main question raised by this appeal is whether under the circumstances of this case plaintiff's established costochondritis is an occupational disease under our Workers' Compensation Act. Though several similar diseases and conditions that are sometimes caused by the wear and tear of employmentblisters, G.S. 97-53(16); bursitis, the inflammation of a bursa, a small soft tissue sac often lying between bones and muscles, G.S. 97-53(17); synovitis, the inflammation of any synovial membrane, G.S. 97-53(20); and tenosynovitis, the inflammation of a synovial membrane that protects a tendon, G.S. 97-53(21)have been legislatively designated as occupational diseases subject to the conditions stated in the respective statutes, costochondritis has not been so designated and can be an occupational disease only as and when G.S. 97-53(13) permits. Under G.S. 97-53(13), as its terms expressly provide and our Supreme Court has held on several occasions, "[a]ny disease" is an occupational disease if it is due to causes and conditions peculiarly characteristic of the worker's particular trade, occupation or employment, and if the disease is not one that the general public, outside of the particular employment, stands an equal risk of contracting. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981); Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979). The statute contains no other conditions and excludes no particular diseases, including the ordinary diseases of life, though hearing loss is expressly covered by another provision. The only exclusion the statute makes is by its limiting conditions, which exclude such diseases as the public is exposed to equally with workers in the particular trade or occupation. Rutledge v. Tultex Corp., 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983). Applying these principles to the record before us leads to the conclusion that the Commission's decision on this question is correct and we affirm it.
Dr. Blount, her primary treating physician, expressed the opinion that the probable cause of her disabling costochondritis is "repeated use of the chest wall in lifting, straining, pulling," and that her job with defendant placed her at greater risk *634 of contracting or aggravating costochondritis than the general public. Dr. Patrick Box, a specialist in internal medicine and rheumatology, in his deposition testified that:
Mrs. Thomason's employment at Fiber Industries involving the repetitive lifting exposed her to a greater risk of getting costochondritis than the public generally.
* * * * * *
I think, as a matter of a medical determination, the repetitive lifting would cause her to have symptoms which would then become a medical problem to her. I believe in the absence of doing the sort of work she was doing, that she might have inflammation or pain which would last for a day or two and then resolve. Her chance, compared to another person with another type of job developing a chronic problem, is much greater because of the type work that she is doing.
That this evidence and that of plaintiff as to the nature and extent of her work is support enough for the Commission's conclusion that plaintiff's disabling costochondritis is an occupational disease under G.S. 97-53(13) is clear, in our opinion. This evidence tends to show, as the Commission found, that the disabling inflammation of the cartilaginous tissues between her sternum and ribs was caused by her constant lifting of 50 pound cakes of yarn, as her employment required; and that the causes and conditions of her inflammation are peculiarly characteristic of her employment as, in effect, a repetitive lifter; and that her work as a repetitive lifter placed her at a greater risk of contracting the inflammatory disease process than the public at large, few of whom, it is safe to say, regularly and repeatedly lift anything weighing 50 pounds. That another medical expert testified that lifting cakes of yarn in her work did not cause her costochondritis is immaterial for our purposes, since conflicts and contradictions in the evidence are for the Commission to decide, not us. Pardue v. Blackburn Bros. Oil & Tire Co., 260 N.C. 413, 132 S.E.2d 747 (1963). Since the findings of fact on this point are supported by competent evidence and they justify the legal conclusions and decision, it must be affirmed. Brice v. Robertson House Moving, Wrecking and Salvage Co., 249 N.C. 74, 105 S.E.2d 439 (1958).
But, as defendants contend, the Commission erred in computing the compensation that is due plaintiff because of her partial disability. Subject to the limitations and percentages stated in the statute in partial disability cases, the weekly benefit due is based on the difference between the employee's average weekly wage before the injury and average weekly wages which he is able to earn thereafter. Yet here no finding was made as to the average weekly wage that plaintiff was able to earn after she became disabled; nor was any finding made as to the difference between that amount and her previous average weekly wage of $293.88. Thus, the cause is remanded for the limited purpose of determining the weekly benefits due plaintiff in accord with G.S. 97-30.
Affirmed and remanded.
BECTON and EAGLES, JJ., concur.
