The opinion
Judge Becton
dissenting.
I neither denigrate the presumption of regularity accorded the Opinions and Awards of the North Carolina Industrial Commission (Commission), nor, on the facts of this case, favor the “whole record” test over the “any competent evidence” test. I do champion, however, a procedure that will allow effective appellate review of agency decisions. Appellate courts should not accept cavalierly an agency’s bare statement that it has “reviewed the record in its entirety, carefully weighing the evidence . . . ,” ante p. 3, because saying it is so does not make it so.
In my view, this case should be reversed and remanded to the North Carolina Industrial Commission because:
(a) The three numbered findings of fact are laced with conclusions of law — e.g., “plaintiffs employment . . . did not place him at an increased risk of contracting chronic obstructive pulmonary disease”: “plaintiff . . . does not . . . have an occupational disease”; and “plaintiff was not permanently or partially disabled as a result of his employment with defendant employer”;
(b) Dr. Hayes, a non-examining physician, who was provided no information about the level of cotton dust in the areas where the plaintiff worked, gave contradictory testimony on a crucial issue in this case, ante p. 8 (see Ballenger v. Bur *281 ris Industries, Inc., 66 N.C. App. 556 , 311 S.E. 2d 881 , disc. rev. denied, 310 N.C. 743 , 315 S.E. 2d 700 (1984)); and
(c) The Commission did not follow the dictates of Rutledge.
To prove causation in this case, plaintiff had to show, under Rutledge, that his occupation exposed him to a greater risk of contracting the disease than members of the public generally. Even Dr. Hayes testified that plaintiffs occupational exposure placed him at a “slightly increased,” although not a “much higher” risk of developing obstructive lung disease. That, in my view, is all that Rutledge requires.
I vote to reverse and to remand this case to the North Carolina Industrial Commission.