Dean v. Cone Mills Corp.

WEBB, Judge.

Our review of the Commission’s order is limited to determining (1) whether the Commission’s findings of fact are supported by competent evidence, and (2) whether the findings of fact justify the legal conclusion. See Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E. 2d 101 (1981). We believe the Commission’s findings of fact are supported by the evidence. The burden of proof was on the plaintiff to show he had a compensable disease. The testimony of Dr. Hayes as to the small chance that plaintiffs disease was caused by his occupational exposure and the slight risk to which work in a cloth room places a person together with the testimony of Dr. Kilpatrick that his opinion as to the cause of the plaintiffs condition was to a certain extent speculation is evidence which supports the Commission’s finding that the plaintiff had not carried his burden of proof. The conclusion that plaintiffs disease is not compensable is supported by this finding of fact.

The plaintiff argues that a fair review of the record shows that the Commission did not fairly weigh and consider all the evidence. We do not believe this argument has merit. The Commission is not required to make findings on all the evidence. It is required to make findings of fact on the evidence from which we can determine that the law is correctly applied. We believe the Commission has done this. We assume they considered all the evi*240dence. We do not believe Harrell v. Stevens & Co., 45 N.C. App. 197, 262 S.E. 2d 830, cert. denied, 300 N.C. 196, 269 S.E. 2d 623 (1980), later appealed, 54 N.C. App. 582, 284 S.E. 2d 343 (1981), petition denied, 305 N.C. 152, 289 S.E. 2d 379 (1982); or Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 235 S.E. 2d 856 (1977), relied on by plaintiff, are helpful to him. In Harrell the Commission was reversed because the Commission recited in its order that it discounted certain evidence. In Gaines the case was remanded because the Commission did not make sufficient findings of fact. In this case there is no indication in the Commission’s order that it did not weigh all the evidence and we have held it made sufficient findings of fact.

The appellant argues that the Industrial Commission rendered its decision in this case before the cases of Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E. 2d 359 (1983) and Walston v. Burlington Industries, 304 N.C. 670, 285 S.E. 2d 822 (1982) were filed. He argues that the Commission did not address the issue of aggravation of his condition under the law as established in these two cases. We hold that the Commission, by finding that the plaintiff had not carried his burden of proving his condition was “contributed to by his exposure to cotton dust in the defendant’s mill,” has addressed the issue of aggravation under these two cases.

The appellant assigns error to the hearing commissioner’s denial of his motion for a view of the premises. Assuming the hearing commissioner had the authority under G.S. 97-76 or otherwise to inspect the premises, it was in his discretion as to whether he should do so. The plaintiff last worked on the premises in 1975. The motion for an inspection of the premises was made in 1981. We hold the hearing commissioner did not abuse his discretion in denying the motion.

Affirmed.

Judge Eagles concurs. Judge Phillips dissents.