Hyatt v. Waverly Mills, 8110IC781

• Decision Date: 16 February 1982
• Docket Number: No. 8110IC781,8110IC781
• Citation: 56 N.C.App. 14,286 S.E.2d 837
• Court: North Carolina Court of Appeals
• Parties: Walter HYATT, Employee, Plaintiff, v. WAVERLY MILLS, Employer, and Travelers Insurance Company, Carrier, Defendants.

Page 837

286 S.E.2d 837

56 N.C.App. 14

Walter HYATT, Employee, Plaintiff, v. WAVERLY MILLS, Employer and Travelers Insurance Company, Carrier, Defendants.

No. 8110IC781.

Court of Appeals of North Carolina.

Feb. 16, 1982.

Hassell & Hudson by Robin E. Hudson, Raleigh, for plaintiff-appellee.

Gene Collinson Smith, Raleigh, for defendant-appellants.

WELLS, Judge.

In their first and third assignments of error, defendants contend that the Commission erred in finding that plaintiff is permanently and totally disabled as a result of chronic obstructive lung disease which plaintiff contracted as a result of his exposure to cotton dust during his employment as a textile worker. Defendants' argument takes two tacks: one, that the evidence does not support a finding of total disability; and two, that the evidence does not support a finding that plaintiff's disability was caused solely by his exposure to cotton dust in his employment. The standard of review of such findings by the Commission is well established. We quote from the opinion of our Supreme Court in Walston v. Burlington Industries, --- N.C. ---, 285 S.E.2d 822, (1982).

Except as to questions of jurisdiction, the rule is that the findings of fact made by the Commission are conclusive on appeal when supported by competent evidence. This is so even though there is evidence to support a contrary finding of fact. Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E.2d 364 (1980); Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E.2d 449 (1977); Anderson v. Construction Co., 265 N.C. 431, 144 S.E.2d 272 (1965); Rice v. Chair Co., 238 N.C. 121, 76 S.E.2d 311 (1953); Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950). The appellate court does not retry the facts. It merely determines from the proceedings before the Commission whether sufficient competent evidence exists to support its findings of fact. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923 (1953).

See also Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981); Harrell v. J. P. Stevens & Co., Inc., 54 N.C.App. 582, 284 S.E.2d 343 (1981). Defendants' argument as to plaintiff's degree of disability rests entirely on Dr. Woolfolk's statement that plaintiff was totally disabled "as of now" and Dr. Williams' statement that plaintiff was disabled for "anything except sedentary occupation in a very clean environment". The Commission found that plaintiff was permanently disabled as of the date of his retirement on 6 May 1978. Dr. Woolfolk's testimony that plaintiff was totally disabled as of the date of his testimony on 10 October 1979, eighteen months after plaintiff's retirement for disability, supports and enforces the Commission's findings and does not detract from or contradict them. As for Dr. Williams' evaluation of plaintiff's ability to work only at sedentary jobs in a very clean environment, such testimony must be evaluated in the light of plaintiff's education, training, and employment history. The question is what effect the disabling disease has had upon this particular plaintiff. Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978); Mabe v. Granite Corp., 15 N.C.App. 253, 189 S.E.2d 804 (1972). Plaintiff's age, education, training, and work experience do not suggest a reasonable probability that he could obtain employment in anything but a manual labor environment, since that is all he has ever done. See Little, supra. The Commission's findings as to his total disability, as these terms are used in our Workers' Compensation Act, G.S. 97-2(9) and G.S. 97-55, are clearly and amply supported by the evidence. Little, supra. See Anderson v. Smyre Mfg. Co., --- N.C.App. ---, 283 S.E.2d 433 (1981).

Defendants also argue that the evidence shows that plaintiff's disability was due in part to angina, pointing to Dr. Woolfolk's testimony. Dr. Woolfolk did not examine plaintiff and diagnose angina until 14 April 1979, almost eleven months after plaintiff became disabled for work. Defendants' argument is without merit. The injury resulting in disability due to a compensable disease occurs when the claimant becomes disabled. Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). The onset of other non-work-related diseases or infirmities following the work-related injury, i.e., the work-related disablement, does not affect in any way plaintiff's entitlement to compensation as of the date of his work-related injury.

Next, defendants argue that the evidence does not support a finding that the sole cause of plaintiff's disability was his occupational exposure to cotton dust and that the medical evidence before the Commission was not sufficiently definite on the cause of plaintiff's disability to permit effective appellate review. In support of this argument, defendants cite our Supreme Court's order in Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E.2d 364 (1980). We recognize that the court's order in Morrison, supra, and its subsequent opinion in Morrison, reported at 304 N.C. 1, 282 S.E.2d 458 (1981) establish the standards by which we must resolve this issue. It is thus appropriate that we review the history of and the issue involved in Morrison in some detail. Morrison arrived at this court in the context of an appeal by the plaintiff from an opinion and award in which the Industrial Commission, though finding plaintiff to be totally and permanently disabled, awarded her only partial compensation on the grounds that the medical evidence in the record showed that her total disability was due in part to non-occupational disease or infirmities. In a two to one decision ¹ we held that the Commission was without authority to apportion plaintiff's disability where the evidence showed that her occupational disease was the precipitating cause of her inability to work. On appeal, our Supreme Court issued its 1980 order, supra, remanding the case directly to the Commission for further proceedings. In its order the court stated that the medical evidence before the Commission was not sufficiently definite on the cause of plaintiff's disability to permit effective appellate review. We quote the statements we believe to be most pertinent to the issue now before us.

As we read the medical testimony, the physicians never addressed the crucial medical question of the interrelations, if any, between the cotton dust exposure and claimant's other infirmities such as her bronchitis, upper respiratory infection, sinusitis, phlebitis, and diabetes. In order for this Court to determine if the Commission's findings and conclusions are supported by the evidence, the record, through medical testimony, must clearly show: (1) what percentage, if any, of plaintiff's disablement, i.e., incapacity to earn wages, results from an occupational disease; (2) what percentage, if any, of plaintiff's disablement results from diseases or infirmities unrelated to plaintiff's occupation which were accelerated or aggravated by plaintiff's occupational disease; and (3) what percentage, if any, of plaintiff's disablement is due to diseases or infirmities unrelated to plaintiff's occupation which were not accelerated or aggravated by plaintiff's occupational disease.

On remand, the Commission took additional medical evidence, readdressing the questions relating to the causes of Mrs. Morrison's disability. Following the hearing on remand, the Commission made additional findings of fact and entered an award for the same degree of partial disability: 55 percent, which it had originally found. In its 1981 opinion, supra, the Supreme Court affirmed, holding that the medical evidence adduced at the hearing on remand clearly supported apportionment of only a part of Mrs. Morrison's disability to her occupational disease. In its opinion, the court stated the rule in such cases as follows:

What, then, must a plaintiff show to be entitled to compensation for disablement resulting from an occupational disease covered by G.S. 97-53(13)? The answer is: She must establish (1) that her disablement results from an occupational disease encompassed by G.S. 97-53(13), i.e., an occupational disease due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment as distinguished from an ordinary disease of life to which the general public is equally exposed outside of the employment; and (2) the extent of the disablement resulting from said occupational disease, i.e., whether she is totally or partially disabled as a result of the disease. If the disablement resulting from the occupational disease is total, the claimant is entitled to compensation as provided in G.S. 97-29 for total disability. If the disablement resulting from the occupational disease is partial, the claimant is entitled to compensation as provided in G.S. 97-30 for partial disability. To be compensable under the Workers' Compensation Act, an injury must result from an accident arising out of and in the course of the employment. G.S. 97-2(6). Claimant has the burden of showing such injury. (Citation omitted.) That means, in occupational disease cases, that disablement of an employee resulting from an occupational disease which arises out of and in the course of the employment, G.S. 97-52 and G.S. 97-2(6), is compensable and claimant has the burden of proof "to show not only ... disability, but also its degree." (Citation omitted.)

We find that plaintiff's evidence in this case meets the requirements of Morrison, supra. The testimony of both Dr. Williams and Dr. Woolfolk established plaintiff's lung disease as the cause of his disability. The medical evidence clearly supports the Commission's finding that plaintiff's lung disease was the cause of his disability and that his lung disease was caused by his exposure to cotton dust in his employment. Plaintiff's own testimony describing the physical manifestations of his disability: shortness of breath, inability to walk or remain ambulatory...