McCuiston v. Addressograph-Multigraph Corp.

23 Citing cases

  1. Powers v. Goodyear Tire Rubber

    191 N.C. App. 251 (N.C. Ct. App. 2008)

    Clearly, the Industrial Commission was simply covering all bases in order to fend off superfluous arguments on appeal. Plaintiff then argues that the case of McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983), states that a plaintiff suffering from any of the enumerated occupational diseases need only prove that he was exposed to harmful substances listed in N.C. Gen. Stat. § 97-53(14) and that he suffered injury of the type described in that section, and then the burden of proof is shifted to the employer to prove that the form, quantity, and frequency of use of the chemicals did not cause the injuries. This argument is without merit.

  2. Corban v. Chesapeake Expl., L.L.C.

    2016 Ohio 5796 (Ohio 2016)   Cited 65 times
    In Corban, the Ohio Supreme Court held the 2006 DMA applies prospectively to all claims that mineral rights have been abandoned that are asserted after the DMA's effective date.

    Mun. Resale Serv. Customers v. Fed. Energy Regulatory Comm., 43 F.3d 1046, 1053 (6th Cir.1995) ; see, e.g., Rowe v. New Hampshire Motor Transport Assn., 552 U.S. 364, 372, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008) (statute's " ‘deemed to know’ provision * * * creates a conclusive presumption of carrier knowledge"); Ohio Power Co. v. Fed. Energy Regulatory Comm., 954 F.2d 779, 783 (D.C.Cir.1992) (word "deemed" in regulation establishes conclusive presumption); Butts v. Bysiewicz, 298 Conn. 665, 684, 5 A.3d 932 (2010) ( "it is apparent that this term [‘deem’] can indicate a conclusive presumption"); Hutchinson Technology, Inc. v. Commr. of Revenue, 698 N.W.2d 1, 13 (Minn.2005) (" ‘in our statutes the word "deemed" appears to be treated as creating a conclusive presumption’ "), quoting First Natl. Bank of Mankato v. Wilson, 234 Minn. 160, 164, 47 N.W.2d 764 (1951) ; McCuiston v. Addressograph–Multigraph Corp., 308 N.C. 665, 669, 303 S.E.2d 795 (1983), fn. 3 ("the phrase ‘shall be deemed incapable of producing occupational loss of hearing’ creates a conclusive presumption"); Gulf Oil Corp. v. Heath, 255 Ark. 604, 609, 501 S.W.2d 787 (1973) (interpreting the word "deemed" as creating conclusive presumption); State ex rel. Morrison v. Thomas, 80 Ariz. 327, 333, 297 P.2d 624 (1956) (same). {¶ 23} In State ex rel. Walker v. Clark, 144 Ohio St. 305, 311, 58 N.E.2d 773 (1944), we noted that "[a] conclusive presumption may be defined as an inference which the law makes so peremptory that it may not be overcome by any contrary proof, however strong."

  3. Muscatine County v. Morrison

    409 N.W.2d 685 (Iowa 1987)   Cited 6 times

    Other states allow awards for occupational hearing loss under their occupational disease or workers' compensation statutes, often without stated time and intensity exposure levels. See Miller v. Amalgamated Sugar Co., 105 Idaho 725, 672 P.2d 1055 (1983) (occupational disease statute); Armco Steel Corp. v. Trafton, 35 Md. App. 658, 371 A.2d 1128 (1977) (same); Dotolo v. FMC Corp., 375 N.W.2d 25 (Minn. 1985) (workers' compensation statute); Scheier v. Garden State Forge Co., 136 N.J. Super. 555, 347 A.2d 362 (1975) (same); McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983) (workers' compensation statute — conclusive presumption in statute that exposure to noise of less than ninety decibels is not harmful); Hinkle v. H.J. Heinz Co., 462 Pa. 111, 337 A.2d 907 (1975) (workers' compensation statute); Myers v. State Workmen's Compensation Comm'r, 160 W. Va. 766, 239 S.E.2d 124 (1977) (occupational disease statute). See generally 1B A. Larson, The Law of Workmen's Compensation §§ 41.51-.53 (1986).

  4. Dillingham v. Yeargin Construction Co.

    358 S.E.2d 380 (N.C. 1987)   Cited 24 times
    In Dillingham the Supreme Court held that Plaintiff was exposed to an increased risk of sustaining a heat-related illness because the heavy radiation suit he was required to wear exposed him to a greater danger of overheating than that to which he would otherwise be subjected, establishing an injury by accident.

    It was not necessary that plaintiff present evidence as to the exact temperature inside the radiation suit in order to show an increased risk of overheating. Cf. McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983) (claimant need not measure noise level to support claim for hearing loss); Gay v. J. P. Stevens Co., 79 N.C. App. 324, 339 S.E.2d 490 (1986) (claimant need not measure concentrations of dust and toxins to support claim for occupational disease due to dust and fume inhalation); Lake v. Midwest Packing Company, 301 S.W.2d 834 (Mo. 1957) (claimants need not establish exact temperature in workplace to support heatstroke claim). Evidence that the room temperature was 85 degrees and that plaintiff suffered heat exhaustion while wearing a radiation suit which inhibited his body's ability to radiate heat is sufficient.

  5. Hannah v. Workers' Compensation Commissioner

    346 S.E.2d 757 (W. Va. 1986)   Cited 3 times

    Expert testimony or noise level tests are not required in order to show that a workplace is excessively noisy. Food Machine Corporation v. Shook, 425 So.2d 163 (Fla.App. 1983); McCuiston v. Addressograph-Multigraph Corporation, 308 N.C. 665, 303 S.E.2d 795 (1983). The order of the Workers' Compensation Appeal Board, dated June 7, 1985, is hereby reversed, and the case is remanded to the Commissioner to enter an order ruling the claim compensable and to further proceed toward a medical determination of the existence of any disability.

  6. Ruffin v. Domtar Paper Co.

    NO. COA11-277 (N.C. Ct. App. Nov. 1, 2011)

    Our Supreme Court has held that in order to establish a prima facie case for compensation under N.C. Gen. Stat. § 97-53(28), the plaintiff must prove: "(1) loss of hearing in both ears which was (2) caused by harmful noise in his work environment. . . . If the employer then proves that the sound which caused plaintiff's hearing loss was of an intensity of less than 90 decibels, A scale, plaintiff cannot recover." McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 667, 303 S.E.2d 795, 797 (1983). N.C. Gen. Stat. § 97-53(28)(i) provides:

  7. Becker v. Murphy Oil Corp.

    70 So. 3d 885 (La. Ct. App. 2011)   Cited 13 times

    The trial court cited Occupational Noise Exposure, Hearing Conservation Amendments Level, 46 Fed.Reg. 4078, 4087-96 (1981), as evidence for the proposition that "there is an abundance of epidemiological and laboratory evidence that protracted noise exposure above 90dB causes hearing loss in a substantial portion of the exposed population." The court concluded that, contrary to Murphy's assertions, the cases of Joy Mining Machinery v. Workers' Compensation Appeal Board, 805 A.2d 1279 (Penn. 2002) and McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983) did not stand for the proposition that noise exposures at or below 90 dBA were "safe"; nor were the cases analogous, as both involved workers' compensation actions for benefits under the respective workers' compensation laws, and were thus inapplicable for tort based premises liability or negligence actions. Additionally, the court noted that the workers' compensation laws in Joy Mining and McCuiston did not establish a sound level for entitlement to benefits, but allowed an employer to raise the affirmative defense that noise levels did not exceed 90 dBA on an eight-hour time weighted average.

  8. Strezinski v. City of Greensboro

    654 S.E.2d 263 (N.C. Ct. App. 2007)   Cited 3 times

    To do so, she must prove “(1) loss of hearing in both ears which was (2) caused by harmful noise in [her] work environment." McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 667, 303 S.E.2d 795, 797 (1983) (emphasis added).           Plaintiff correctly cites McCuiston as establishing the elements for her claim, but states that in order to prevail, she must prove only that she has suffered hearing loss in both ears and that she was exposed to harmful noise in her workplace.

  9. Strezinski v. City of Greensboro

    187 N.C. App. 703 (N.C. Ct. App. 2007)

    To do so, she must prove "(1) loss of hearing in both ears which was (2) caused by harmful noise in [her] work environment." McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 667, 303 S.E.2d 795, 797 (1983) (emphasis added). Plaintiff correctly cites McCuiston as establishing the elements for her claim, but states that in order to prevail, she must prove only that she has suffered hearing loss in both ears and that she was exposed to harmful noise in her workplace.

  10. Vaughn v. Insulating Servs

    165 N.C. App. 469 (N.C. Ct. App. 2004)   Cited 10 times
    In Vaughn, the "plaintiff argued the Commission improperly required him to produce scientific or medical evidence of exposure to asbestos for the relevant time period while in defendant's employ."

    A construction of the statute which defeats its purpose . . . would be irrational and will not be adopted by this Court.Id., citing Gay v. J.P. Stevens Co., 79 N.C. App. 324, 333-34, 339 S.E.2d 490, 496 (quoting McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 668, 303 S.E.2d 795, 797 (1983)). This does not mean, however, that the Commission cannot consider expert testimony, or the lack thereof, along with lay testimony, in weighing the evidence and determining whether claimant has met his burden of proof.