Hendrix v. Linn-Corriher Corp., LINN-CORRIHER

• Decision Date: 02 July 1986
• Docket Number: No. 55A86,LINN-CORRIHER,55A86
• Parties: Ralph Junior HENDRIX v.CORP. (Self-insured).
• Court: North Carolina Supreme Court

Page 374

345 S.E.2d 374

317 N.C. 179

Ralph Junior HENDRIX v. LINN-CORRIHER CORP. (Self-insured).

No. 55A86.

Supreme Court of North Carolina.

July 2, 1986.

Lore & McClearen by R. James Lore, Raleigh, for plaintiff-appellant.

Teague, Campbell, Dennis & Gorham by George W. Dennis, III and Linda Stephens, Raleigh, for defendant-appellant.

Woodrow W. Gunter, II, Rockingham, for The North Carolina Academy of Trial Lawyers, amicus curiae.

MITCHELL, Justice.

This is an occupational lung disease case. At the conclusion of a hearing, a deputy commissioner of the Industrial Commission found and concluded that Ralph J. Hendrix, the claimant-plaintiff, suffered from byssinosis and chronic obstructive pulmonary disease and was permanently partially disabled as a result. The deputy commissioner awarded the plaintiff weekly compensation equal to two-thirds of the difference between his average weekly wage while employed by the defendant and the average weekly wage which he received after his employment with the defendant ended, not to exceed 300 weeks. Both the plaintiff and the defendant appealed to the Industrial Commission. The Industrial Commission adopted the factual findings and the conclusions of the deputy commissioner. The Commission modified only the amount of the award.

The defendant appealed to the Court of Appeals. The Court of Appeals, with one judge concurring in the result and one judge dissenting, reversed stating that the evidence was insufficient to support a finding that the plaintiff was incapable of earning the same wages he had earned before his injury.

The plaintiff appealed to this Court contending that there was competent evidence of record to support the findings and the conclusions of law to the effect that the plaintiff was partially disabled and was entitled to the compensation awarded by the Industrial Commission. The plaintiff further contends the Court of Appeals did not apply the correct legal standard dictated by Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978). The defendant appealed from the Court of Appeals' denial of its motion to remand for newly discovered evidence. We affirm the denial of the defendant's motion. We reverse the Court of Appeals' reversal of the Commission's award and remand with instructions.

I.

The evidence introduced tended to show that the plaintiff began working in cotton textile mills in 1952 when he was sixteen years old. In 1954, he first began working at Linn Mill (now the defendant Linn-Corriher) in the card room where cotton was processed. He left the defendant in 1961, worked at another textile mill and returned to work in the defendant's card room in 1969. The plaintiff continued to work for the defendant until 11 February 1981 when he was dismissed pursuant to company policy for more than twelve absences per year.

The plaintiff testified before the deputy commissioner that he had an eighth grade education but could not read or write well. His only work experience from 1952 until 1981 was in the cotton textile industry. He has smoked cigarettes since he was thirty-one years old.

The plaintiff's exposure to substantial amounts of cotton dust began in 1954. In 1972, he first noticed chest tightness and a cough. Shortness of breath occurred whenever he participated in strenuous work. However, he could still participate in activities such as bowling and pitching horseshoes. The plaintiff would experience shortness of breath on Sunday which was the first day of his work week. His symptoms would improve throughout the work week. His chest tightness and cough became worse during 1980. In 1981, the plaintiff became sick with pneumonia and was absent from work for nearly three weeks.

Dr. Kelling, an expert witness, testified that in his opinion the plaintiff had byssinosis. The combination of his smoking habits and byssinosis had resulted in a twenty to thirty percent respiratory impairment. Dr. Kelling testified that the plaintiff should not work in an environment containing cotton or cotton dust. He also testified that the plaintiff stated that he was never so short of breath that he was unable to do his job. Dr. Kelling opined that

Mr. Hendrix would be capable of doing work, which for short periods of time he could lift perhaps five to ten pounds of weight. Where he would be able to walk on a level plane, occasionally could be asked to climb one flight of stairs; certainly anything requiring manual dexterity would be within his range.... You would not want him in an environment of dust, fumes, chemical fumes.

After his dismissal by the defendant in 1981, the plaintiff sought employment in other textile mills. He was rejected by each of them when he could not pass a breathing test.

The deputy commissioner found that the plaintiff was "unable to obtain employment in the cotton textile industry due to his inability to pass the breathing test." The deputy commissioner further found:

Plaintiff has worked at Sambo's a restaurant, for approximately five weeks at the rate of $3.35 per hour for a 40 hour week or approximately $134.00. Plaintiff was laid off from this job when the restaurant went out of business. Plaintiff has subsequently sought employment at Landis Ice and Fuel, Food Town Grocery Store, The Pantry, Phillip Morris Company and T & O Tile.

The deputy commissioner also found inter alia that:

9. Plaintiff's chronic obstructive pulmonary disease is mild in nature in that he has approximately 20% to 30% respiratory impairment. Since plaintiff has last been employed in the cotton textile industry his breathing has improved but exertion continues to cause shortness of breath. Plaintiff should not be exposed to dust or fumes or chemicals due to his respiratory impairment. Since plaintiff last worked for defendant Linn-Corriher Corporation on February 11, 1981, he has been and remains partially incapable of engaging in gainful employment. His partial incapacity to work and earn wages results from his permanent physical impairment caused by his chronic obstructive lung disease and byssinosis which in combination with his age, his limited education and his 29 years of employment in the cotton textile industry limit his ability to earn wages.

Based on his findings, the deputy commissioner concluded that the plaintiff "has a compensable occupational disease." The deputy commissioner also concluded inter alia:

2. As a result of his occupational disease plaintiff is and remains partially disabled from working and earning the wages that he was earning when he was last employed by the defendant employer on February 11, 1981. Plaintiff is therefore entitled to weekly compensation, not to exceed 300 weeks equal to sixty six and two thirds percent of the difference between 196.91 his average weekly wage when he last worked for defendant Linn-Corriher, and the average weekly wage which he earned thereafter which is $134.00.

The deputy commissioner then entered an award granting the plaintiff compensation of $41.94 a week in accord with his conclusions.

On appeal, the Industrial Commission adopted the factual findings and the conclusions of the deputy commissioner. The Commission modified the award to the plaintiff, however, by holding that:

In the opinion of the Commission, the provisions of G.S. 97-30 require that the plaintiff be paid his full compensation rate of $131.27 per week when his permanent partial disability prevents him from finding any gainful employment during the period not to exceed 300 weeks beginning 11 February 1981 and the plaintiff's compensation rate should be reduced to 41.94 a week only for the period of five weeks when he earned the minimum wage of $134.00 a week working at the fast-food restaurant. By the same token, and also in accordance with G.S. 97-30, if the plaintiff should find employment in the future earning more or less than the minimum wage, his compensation rate should be adjusted accordingly in accordance with the provisions of G.S. 97-30. The Conclusions of Law and the Award in the Opinion and Award are hereby MODIFIED and CLARIFIED accordingly.

The Court of Appeals reversed the award by the Commission on the ground that the evidence was insufficient to support a finding that the plaintiff was incapable of earning the same wages he had earned before contracting his lung disease.

II.

A.

The plaintiff makes the initial argument that the defendant waived its right to challenge the compensability of his disease when it failed to assign as error the following conclusion of law:

1. Plaintiff has chronic obstructive pulmonary disease and byssinosis which are due to causes and conditions characteristic of and peculiar to employment in the cotton textile industry. Such lung diseases are not ordinary diseases of life to which members of the general public are equally exposed outside of that employment. Plaintiff has a compensable occupational disease. G.S. 97-53(13); Rutledge v. Tultex Corporation/Kings Yarn, 308 N.C. 85 (1983)

(Emphasis added.) The plaintiff contends that by failing to assign error to this conclusion the defendant in effect conceded that the plaintiff's occupational disease was compensable, and that the only issue before this Court is the propriety of the amount of the award. We disagree.

The plaintiff was required to prove that his disease was an "occupational" disease under N.C.G.S. § 97-53(13) in order to establish that it was of a class which may be compensable under the Worker's Compensation Act, N.C.G.S. ch. 97. ¹ Having met this requirement, the plaintiff still had the burden of proving that the disease caused a disability under N.C.G.S. §§ 97-29 and 54 before an award of compensation could be granted. Morrison v. Burlington Industries, 304 N.C. 1, 12-13, 282 S.E.2d 458, 466-67 (1981); Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857 (1965).

The use of the word "compensable" in the conclusion that the plaintiff had an occupational disease had a tendency to be...