Hilliard v. Apex Cabinet Co.

• Decision Date: 04 May 1982
• Docket Number: No. 8PA82,8PA82
• Court: North Carolina Supreme Court
• Parties: Charles W. HILLIARD, Employee, Plaintiff, v. APEX CABINET COMPANY, Employer, Defendant, American Mutual Liability Company, Carrier, Defendant.

Page 682

290 S.E.2d 682

305 N.C. 593

Charles W. HILLIARD, Employee, Plaintiff, v. APEX CABINET COMPANY, Employer, Defendant American Mutual Liability Company, Carrier, Defendant.

No. 8PA82.

Supreme Court of North Carolina.

May 4, 1982.

Jeff Erick Essen and Grover C. McCain, Jr., Durham, for plaintiff-appellant.

Teague, Campbell, Conely & Dennis by C. Woodrow Teague and George W. Dennis, III, Raleigh, for defendants-appellees.

BRANCH, Chief Justice.

Plaintiff assigns error to the finding of fact of the Deputy Commissioner, affirmed by the full Industrial Commission and the Court of Appeals, to the effect that plaintiff "does not have any permanent disability as a result of the injury giving rise hereto." He argues that the determination of whether a disability exists is a conclusion of law and that said conclusion must be based upon findings of fact supported by competent evidence. We agree.

The necessary factual basis for a determination of disability is set out in G.S. 97-2(9).

Disability.--The term "disability" means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.

We are of the opinion that in order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual's incapacity to earn was caused by plaintiff's injury. See Watkins v. Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971). In workers' compensation cases, a claimant ordinarily has the burden of proving both the existence of his disability and its degree. Hall v. Chevrolet Co., 263 N.C. 569, 575, 139 S.E.2d 857, 861 (1965).

In passing upon issues of fact, the Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The Commission may accept or reject the testimony of a witness solely on the basis of whether it believes the witness or not. Anderson v. Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951). The findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even though there be evidence to support a contrary finding. Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Conner v. Rubber Co., 244 N.C. 516, 94 S.E.2d 486 (1956). However, the Commission's legal conclusions are reviewable by the appellate courts. Jackson v. Highway Commission, 272 N.C. 697, 158 S.E.2d 865 (1968). It is equally well settled that when the findings are insufficient to determine the rights of the parties, the court may remand to the Industrial Commission for additional findings. Byers v. Highway Comm., 275 N.C. 229, 166 S.E.2d 649 (1969); Brice v. Salvage Co., 249 N.C. 74, 105 S.E.2d 439 (1958).

In instant case it was plaintiff's burden to persuade the Commission not only that he had obtained no other employment but that he was unable to obtain other employment.

A plaintiff must adduce, in cases where he is physically able to work, evidence that he is unsuited for employment due to characteristics peculiar to him. Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978).

In Little plaintiff suffered an injury to her spinal cord which according to medical testimony rendered her incapable of returning to her former employment as a laborer. Plaintiff, a fifty-year-old obese woman with an eighth grade education, was prevented from offering her own testimony as to total disability by the hearing officer's statement that such testimony was unnecessary. Noting that "if other pre-existing conditions such as an employee's age, education and work experience are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person, the employee must be compensated for the incapacity which he or she suffers, and not for the degree of disability which would be suffered by someone with superior education or work experience or who is younger or in better health," the court remanded for the purpose of affording the plaintiff an opportunity to present evidence relevant to her capacity to work and earn wages. Id. at 532, 246 S.E.2d at 746.

Instant case differs from Little in that the record does not disclose that the Commission limited plaintiff in his testimony concerning his capacity to work and earn wages. Here the uncontradicted medical testimony establishes that plaintiff was physically capable of working in employment free from wood dust, paints and lacquer fumes and glue fumes. In this connection plaintiff testified that he was unable to obtain other employment without a diminution in wages because of his age, lack of education and inexperience. He also testified that he had "not gone out to seek any other jobs." This conflicting testimony raised an issue of fact requiring a finding by the Commission. In making that finding, the Commission was free to accept or reject all or any part of plaintiff's testimony. Anderson v. Motor Co., supra.

The Industrial Commission failed to make specific findings of fact as to the crucial questions necessary to support a conclusion as to whether plaintiff had suffered any disability as defined by G.S. 97-2(9). Guest v. Iron and Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955). This Court is therefore unable to determine whether adequate basis exists, either in fact or law, for the Commission's award. This cause is remanded to the Court of Appeals with direction that it be remanded to the Industrial Commission for proceedings consistent with this opinion.

REVERSED AND REMANDED.

EXUM, Justice, concurring.

Although concurring in the majority's decision to reverse the Court of Appeals and to remand this case to the Industrial Commission, I would remand it with instructions that if the Commission believes the evidence claimant has offered, it should make an award that would compensate him for the diminution in his earning capacity to which all the evidence shows him entitled.

I agree with the majority that the Commission's so-called finding of fact that "[p]laintiff does not have any permanent disability as a result of the injury" is a conclusion of law fully reviewable by this Court. My view, however, is that this conclusion is not only unsupported by other findings of the Commission, but that all the evidence shows claimant to have suffered a diminution in earning capacity as a result of an occupational disease. If this evidence is believed, he is entitled to be compensated. I disagree with the majority's view that there is a conflict in the evidence which needs resolution by the Commission.

Dr. Sieker testified without contradiction that claimant had developed a "sensitivity" to dust, glue fumes, and paint fumes due to his long exposure to these things as a cabinet maker. These things were irritants to claimant's respiratory system and caused him to suffer nasal congestion, nosebleeds, headaches and shortness of breath. Dr. Sieker recommended that claimant not return to his work environment, but his opinion was that claimant could work in other environments that are free "of fumes, chemicals and dust."

Claimant testified, again without contradiction, that he had worked all of his adult life as either a farmer or a carpenter and was not qualified because of lack of education and training to do anything else. He said:

Q. Have you tried to do any other kind of work other than carpentry work that does not take you around a glue or paint and lacquer fumes or wood dust? Do you know any other kind of work?

A. No, I haven't been, but the reason, I don't have any education and therefore I can't, and then my age I can't get no other type of work that will, that I can do other than carpentry work.

Q. Have you looked for other types of work?

A. Well, yes I have. And I just can't find anything that I can do other than carpentry work.

In my adult life, I have not done any work except for farming and carpentry.

* * *

I have been offered other jobs, but they were all in cabinet work like the work that I'm not able to do. I have not gone out to seek any other jobs. I have not attempted to get a job doing carpentry work building houses because I'm not educated enough, and even a part-time carpenter, which I have tried, has to be around the painters, varnishers and a lot of sawing.

I do not interpret this testimony to mean that claimant has not looked for jobs other than carpentry work. Indeed, claimant said he had looked for such jobs and couldn't find "anything that I can do other than carpentry work." He then said that he had been offered other work making cabinets which he was not able to do. His statement then was, "I have not gone out to seek any other jobs." Clearly when placed in context this statement means that claimant has not looked for other cabinet making jobs, for obvious reasons. He then says he has not looked for home building work and explains why. Claimant also testified that in order to somehow support himself he opened up his own cabinet shop as a sole proprietor so that he could work at will as he was able. He said, "When I develop these problems during the performance of my carpentry work, I just have to quit work until I get better. But I usually try to work when I'm able to." Claimant's last year's salary (1977) at Apex Cabinet Company was $14,820. As sole proprietor in 1978 he earned $7,114.43 and in 1979, $5,679.79.

The Commission has concluded that claimant has an occupational disease which conclusion is fully supported, if not mandated, by the evidence. In light of this conclusion, it is difficult to see...