Morrison v. Burlington Industries, 114

• Citation: 304 N.C. 1,282 S.E.2d 458
• Decision Date: 06 October 1981
• Docket Number: No. 114,114
• Court: United States State Supreme Court of North Carolina
• Parties: Elsie T. MORRISON, Employee, Plaintiff, v. BURLINGTON INDUSTRIES, Employer, and Liberty Mutual Insurance Company, Carrier, Defendants.

Page 458

282 S.E.2d 458

304 N.C. 1

Elsie T. MORRISON, Employee, Plaintiff, v. BURLINGTON INDUSTRIES, Employer, and Liberty Mutual

Insurance Company, Carrier, Defendants.

No. 114.

Supreme Court of North Carolina.

Oct. 6, 1981.

Hassell & Hudson by Charles R. Hassell, Jr., and Robin E. Hudson, Raleigh, for plaintiff-appellee.

Teague, Campbell, Conely & Dennis by C. Woodrow Teague and George W. Dennis III, Raleigh, Smith, Moore, Smith, Schell & Hunter by McNeill Smith, J. Donald Cowan, Jr., and William L. Young, Greensboro, for defendants-appellants.

Maupin, Taylor & Ellis, P.A. by Richard M. Lewis, Raleigh, for National Association of Manufacturers of the United States of America, amicus curiae.

Johnson, Gamble & Shearon by Samuel H. Johnson, Raleigh, for North Carolina Associated Industries, North Carolina Merchants Association, North Carolina Association of Plumbing-Heating-Cooling Contractors, Incorporated, amicus curiae.

HUSKINS, Justice.

The sole question posed by this appeal is as follows: When the Industrial Commission finds as fact, supported by competent evidence, that a claimant is totally incapacitated for work and 55 percent of that incapacity is caused, accelerated or aggravated by an occupational disease and the remaining 45 percent of that incapacity for work was not caused, accelerated or aggravated by an occupational disease, must the Commission, under the Workers' Compensation Act of North Carolina, award compensation for 55 percent disability or 100 percent disability? Upon such findings of fact, our Act mandates an award for 55 percent partial disability.

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).

The evidence in this case, especially the medical evidence, overwhelmingly supports the Industrial Commission's findings that 55 percent of Mrs. Morrison's inability to work and earn wages is caused by "chronic obstructive lung disease, due in part, to causes and conditions characteristic of and peculiar to her particular ... employment in the textile industry," and the remaining 45 percent is caused independently by her other physical infirmities, including chronic obstructive lung disease not caused, aggravated or accelerated by an occupational disease, as well as bronchitis, phlebitis, varicose veins and diabetes, none of which are job related and none of which have been aggravated or accelerated by her occupational disease. This Court must accept such findings as final factual truth. ² The Commission has found as fact that Mrs. Morrison's infirmities other than "chronic obstructive lung disease due in part to cotton dust exposure" were disabling in and of themselves. See Findings of Fact 5, 6, 8, 9 and 11. We are bound by these findings though there is evidence to the contrary.

The doctors expressed varied opinions on the extent of the medical disability of Mrs. Morrison. There is a distinction between medical and legal disability. It is up to the Commission to determine the degree of legal disability under the Act. To ignore the distinction between the legal and medical concepts of disability confuses the ultimate issue and obscures the function of the fact finder. We must now determine the proper degree of legal disability for workers' compensation purposes.

In the field of workers' compensation law, the statutes control. We must follow the dictates of our legislature on what is or is not compensable.

The parties agree that the evidence is sufficient to sustain the Commission's finding that Mrs. Morrison contracted an occupational disease while employed by Burlington Industries; that she is totally incapacitated for work; and that the occupational disease caused only part of her total incapacity.

Defendants contend that the "resulting from the injury" language in both G.S. 97-29 and 97-30 means that she is entitled to compensation only to the extent of the occupational disease's contribution. Hence, she is entitled to compensation for partial disability, not total disability, because the occupational disease caused only part of the disability. Therefore G.S. 97-30, not G.S. 97-29, governs the compensation that should be paid in this case. Those statutes in pertinent part read as follows:

§ 97-29. Compensation rates for total incapacity. Except as hereinafter otherwise provided, where the incapacity for work resulting from the injury is total, the employer shall pay ....

§ 97-30. Partial incapacity. Except as otherwise provided in G.S. 97-31, where the incapacity for work resulting from the injury is partial, the employer shall pay .... (Emphasis added.)

Mrs. Morrison contends that our Workers' Compensation Act permits no such apportionment of an award in a case of total incapacity. She argues that if an occupational disease acting together with non-job-related infirmities causes total disability the employee is entitled to compensation for total disability.

The North Carolina Workers' Compensation Act was enacted in 1929. It is not, and was never intended to be, a general accident and health insurance act. "We should not overstep the bounds of legislative intent, and make by judicial legislation our Compensation Act an Accident and Health Insurance Act." Lewter v. Enterprises, Inc., 240 N.C. 399, 403, 82 S.E.2d 410, 414 (1954); Conrad v. Foundry Co., 198 N.C. 723, 153 S.E. 266 (1930).

G.S. 97-2(6) defines "injury" to mean "only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form, except where it results naturally and unavoidably from the accident."

G.S. 97-2(9) defines the term "disability" to mean "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." Disablement resulting from all occupational diseases (except asbestosis and silicosis) is "equivalent to 'disability' as defined in G.S. 97-2(9)." G.S. 97-54.

When it became apparent that the Act should include a provision for payment of compensation to employees disabled by diseases or abnormal conditions of human beings the causative origin of which was occupational in nature, the legislature adopted in 1935 what is now codified as G.S. 97-52 and -53.

The words "arising out of" refer to the origin or cause of the accidental injury or occupational disease. Bartlett v. Duke University, 284 N.C. 230, 200 S.E.2d 193 (1973); Robbins v. Nicholson, 281 N.C. 234, 188 S.E.2d 350 (1972); Taylor v. Twin City Club, 260 N.C. 435, 132 S.E.2d 865 (1963); Guest v. Iron and Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955); Duncan v. Charlotte, 234 N.C. 86, 66 S.E.2d 22 (1951); G.S. 97-52; G.S. 97-54.

The words "in the course of" refer to the time, place and circumstances under which the injury by accident, or disablement resulting from an occupational disease, occurred. Bartlett v. Duke University, supra; Robbins v. Nicholson, supra.

The foregoing legal principles demonstrate that the inquiry here is to determine whether, and to what extent, plaintiff is incapacitated by that part of her chronic obstructive lung disease caused by her occupation to earn, in the same or any other employment, the wages she was receiving at the time she became disabled. It is overwhelmingly apparent that disability resulting from an accidental injury, or disablement resulting from an occupational disease, as the case may be, must arise out of and in the course of the employment, i. e., there must be some causal relation between the injury and the employment before the resulting disability or disablement can be said to "arise out of" the employment.

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. Henry v. Leather Co., supra. 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." Hall v. Chevrolet Co., 263 N.C. 569, 575, 139 S.E.2d 857,...