Morrison v. Burlington Industries, 7910IC1167

• Court: North Carolina Court of Appeals
• Writing for the Court: WELLS; PARKER; MORRIS; MORRIS
• Citation: Morrison v. Burlington Industries, 266 S.E.2d 741, 47 N.C.App. 50 (N.C. App. 1980)
• Decision Date: 03 June 1980
• Docket Number: No. 7910IC1167,7910IC1167
• Parties: Elsie T. MORRISON, Employee, Plaintiff, v. BURLINGTON INDUSTRIES, Employer, and Liberty Mutual Insurance Company, Carrier Defendants.

Page 741

266 S.E.2d 741

47 N.C.App. 50

Elsie T. MORRISON, Employee, Plaintiff, v. BURLINGTON INDUSTRIES, Employer and Liberty Mutual Insurance Company, Carrier Defendants.

No. 7910IC1167.

Court of Appeals of North Carolina.

June 3, 1980.

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

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

WELLS, Judge.

The sole issue presented in this appeal is whether the Industrial Commission erred as a matter of law in apportioning and reducing plaintiff's compensation for total disability. In order to address the question of law at issue, it is necessary to review the evidence upon which the Commission acted.

Plaintiff was employed in defendant Burlington Industries Mill in Erwin for twenty-seven years. She worked in the cotton spinning department. She last worked on 24 April 1975. At the July 1977 hearing, Henderson D. Mabe, Jr., M. D., testified for plaintiff that he has treated plaintiff since 1965. In January 1975, plaintiff was hospitalized under his treatment. He diagnosed recent upper respiratory infection superimposed on chronic bronchitis, diabetes controlled by diet, and suspected possible byssinosis with history of exposure to lint. In addition to her lung problem, she suffered from phlebitis of the left leg. She was unable to work at her job as of 24 April 1975. The leg problem would not have totally disabled her but was an added factor in her disability.

At the June 1978 hearing, Mario C. Battigelli, M. D., testified for defendants that he was a professor of medicine at the University of North Carolina and was one of the panel of physicians to whom the Industrial Commission refers claimants who make claims for byssinosis. He specialized in pulmonary diseases. He examined plaintiff on 8 April 1975. He filed a report following that examination which included a finding of "4. Chronic obstructive lung disorder, bronchitis in type, in cigarette smoker with aggravation on dust exposure" and a conclusion that "(s)he does not present cyclic disorder which would allow the diagnosis of byssinosis." At the hearing, Dr. Battigelli testified that:

If the Commission should find that Mrs. Morrison is either totally or partially disabled, my opinion, satisfactory to myself to a reasonable degree of medical certainty, as to what percentage of her disability which can be traced or is due to her exposure to cotton dust is that it could be quite miniscule, if not negligible. With luck, between 0 and 20%, in percentage terms.

I suggested that she be relocated to a similar activity in a more sheltered environment, that is not only less exposure to cotton dust, but also not involving a static standing position or anything that was displeasing Mrs. Morrison.

At the November 1977 hearing, Herbert O. Sieker, M. D., testified for plaintiff that he was a professor of medicine at Duke University, specializing in chest and allergic diseases. He examined plaintiff in January 1977 and determined that plaintiff was suffering from severe respiratory disability, that cotton dust was a causative factor in her lung disease, that she was disabled, and that her disability was due to her chronic lung disease. He estimated that somewhere between fifty and sixty percent of her disability was related to cotton dust exposure.

Commissioner Brown's order of 18 December 1978 contains the following pertinent findings and conclusions:

6. On 24 April 1975, plaintiff was totally disabled for work due to her chronic obstructive lung disease resulting from her exposure to cotton dust while in defendant's employ and has since remained so disabled.

7. Plaintiff suffers from chronic obstructive lung disease, an occupational disease due to causes and conditions characteristic of and peculiar to her particular trade, occupation or employment in the textile industry. Her disease is not an ordinary disease of life to which the general public is equally exposed outside of such employment.

8. Due to the occupational disease suffered by plaintiff, she has no earning capacity in any employment for which she can qualify in the labor market.

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CONCLUSIONS OF LAW

1. The compensable occupational disease from which plaintiff suffers is due to causes and conditions which are characteristic of and peculiar to her particular trade, occupation or employment and is not an ordinary disease of life to which the general public outside of such employment is equally exposed. G.S. 97-53(13).

2. As a result of her occupational disease plaintiff is disabled and has been so disabled from 24 April 1975. She is entitled to compensation at the rate of $79.85 per week for such disability for the number of weeks by law provided or until such time as plaintiff has a change of condition. G.S. 97-52; G.S. 97-29; G.S. 97-2(9).

The Full Commission order of 18 June 1979 contains the following pertinent entries:

. . . After reviewing all the competent evidence received in this case, it is the opinion of the Full Commission that while plaintiff does suffer from an occupational disease and is entitled to compensation, it is further the opinion of the Full Commission that plaintiff is not totally disabled by reason of such occupational disease. The Opinion and Award heretofore filed in this case is therefore amended as follows:

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(3) Finding of Fact No. 6, as the same appears on Page 4 of the Opinion and Award, is hereby stricken out in its entirety and there is substituted in lieu thereof the following:

6. In addition to her chronic obstructive lung disease, plaintiff suffers and has suffered for some time from phlebitis, varicose veins and diabetes. Such conditions constitute an added factor in causing her disability.

(4) Finding of Fact No. 8, as the same appears on Page 4 of the Opinion and Award, is hereby stricken out in its entirety and there is substituted in lieu thereof a new Finding of Fact as follows:

8. Due to the occupational disease suffered by plaintiff and due to her other physical infirmities, including bronchitis, phlebitis, varicose veins and diabetes, plaintiff has no earning capacity in any employment for which she can qualify in the labor market. Fifty-five percent of such disability is due to her occupational disease and 45 percent of such disability is due to her physical infirmities not related to her employment with defendant-employer.

(5) A new Finding of Fact is added immediately following Finding of Fact No. 9, as the same appears on Page 4 of the Opinion and Award, as follows:

10. As a result of the occupational disease giving rise hereto, plaintiff has sustained a 55 percent loss of wage-earning capacity or ability to earn wages. Her average weekly wage-earning capacity has been reduced by 55 percent of $119.77 or $65.87 per week. The balance of her wage loss is not a result of her occupational disease.

(6) Conclusion of Law No. 2, as the same appears on Page 5 of the Opinion and Award, is hereby stricken out in its entirety and there is substituted in lieu thereafter a new Conclusion of Law as follows:

2. As a result of her occupational disease, plaintiff has sustained an average weekly wage loss of $65.87 and such temporary partial disability commenced 24 April 1975. She is therefore entitled to compensation at the rate of $43.92 per week for such temporary partial disability commencing 24 April 1975 and the payment of such compensation should continue until such time as plaintiff sustains a change of condition; provided, however, that such payments shall not exceed 300 weeks. G.S. 97-52; G.S. 97-30; G.S. 97-2(9).

As a result of the Full Commission's amendments to Commissioner Brown's order, the Commission has found that plaintiff is totally disabled from work, that her disability was in part caused by occupational disease compensable under the law and in part caused by other noncompensable illnesses, and therefore plaintiff is only entitled to compensation for partial, not total, disability. The Commission erred in this conclusion.

Our courts have historically and consistently held that the disability of the injured employee is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury and that loss of earning capacity is the criteria. See, Ashely v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967) and cases cited therein. From the wording of the pertinent provisions of the statute it is clear that the Commission can only apportion when the claimant retains some capacity to work. G.S. 97-29 provides, ". . . where the incapacity for work resulting from the injury is total, the employer shall pay or cause to be paid . . . to the injured employee during such total disability a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of his average weekly wages . . . ." G.S. 97-30 provides, ". . . where the incapacity for work resulting from the injury is partial, the employer shall pay . . . to the injured employee during such disability, a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter . . . ." (Emphasis added.) In the case sub judice, the Commission's findings of fact clearly establish the link between plaintiff's occupational disease and her incapacity to work. Once that link is established, our law does not contemplate that the Commission shall act as a board of medical inquiry, assigning or proportioning a worker's incapacity to work to other discernable infirmities. If the worker's incapacity to work is total and if that incapacity is occasioned by a compensable injury or disease, the worker's incapacity to work cannot be apportioned to other pre-existing or latent illnesses or infirmities, nor may the...