Peoples v. Cone Mills Corp.

• Decision Date: 06 May 1986
• Docket Number: No. 460PA84,460PA84
• Citation: 316 N.C. 426,342 S.E.2d 798
• Court: North Carolina Supreme Court
• Parties: Robert E. PEOPLES, Employee, v. CONE MILLS CORPORATION, Employer, Self-Insurer.

Page 798

342 S.E.2d 798

316 N.C. 426

Robert E. PEOPLES, Employee, v. CONE MILLS CORPORATION, Employer, Self-Insurer.

No. 460PA84.

Supreme Court of North Carolina.

May 6, 1986.

Kirby, Wallace, Creech, Sarda & Zaytoun by John R. Wallace, Raleigh, for plaintiff-appellee.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr. and Caroline Hudson, Greensboro, for defendant-appellant.

EXUM, Justice.

This is an occupational lung disease case. The Industrial Commission awarded plaintiff, Robert E. Peoples, compensation for total and permanent disability. Defendant, Cone Mills Corporation (hereafter Cone), appealed to the Court of Appeals. As alternative grounds to support its position that plaintiff is not entitled to compensation, Cone argued: (1) Plaintiff is not disabled within the meaning of the Workers' Compensation Act, N.C.G.S. § 97-2(9), because Cone offers plaintiff employment consistent with his medical limitations at no reduction in salary; and (2) N.C.G.S. § 97-32 bars plaintiff from compensation because he is not justified in refusing tendered employment suitable to his capacity. The Court of Appeals concluded that although the evidence is conflicting, it supports the Commission's finding of fact that the job Cone offers plaintiff is incompatible with plaintiff's medical limitations. Accordingly, it affirmed the Commission's award.

The questions presented by this appeal are: (1) Whether the evidence supports the Commission's finding that the proffered employment is not suitable to plaintiff's capacity; (2) even if the evidence does not support such a finding, whether plaintiff is nevertheless disabled and entitled to compensation; and (3) if plaintiff is disabled, whether N.C.G.S. § 97-32 ¹ operates as a bar to compensation.

I.

Plaintiff was born 6 December 1929 and completed the fifth grade. Cone is a textile manufacturing corporation. Plaintiff began working in the card room of Cone's Edna Plant in 1955. He worked there for twenty-four years and was promoted to card room supervisor. Plaintiff was continually exposed to cotton dust and lint in the card room.

Plaintiff noticed his breathing problem after working for several years. He experienced chest tightness, a rasping cough, and breathing difficulty when he came to work on Mondays after spending the weekend away from the plant. These symptoms eventually began to appear on every day of the week. Dr. George Kilpatrick, Jr., a pulmonary specialist, examined plaintiff on 20 June 1978. He diagnosed plaintiff as having chronic obstructive pulmonary disease with a byssinosis component. He categorized plaintiff as having moderate lung impairment. Another pulmonary specialist, Dr. Mario Battigelli, confirmed Dr. Kilpatrick's diagnosis. When Cone learned of Dr. Battigelli's diagnosis, it transferred plaintiff from the card room to the supply room to avoid exposing him further to cotton dust.

In the supply room plaintiff filled parts orders, handled parts shipments and took inventory. His work required bending, lifting, reaching and walking. After working four days in the supply room plaintiff was hospitalized because of chest pain and breathing difficulty. Plaintiff testified the supply room job was tiresome. He said, "I had to rest practically the whole 16 hours that I was home just to be able to get back and make it." Plaintiff also stated that dust filtered down from the production areas through the elevator and flooring into the supply room and "it was bothersome." Plaintiff did not return to work after he was discharged from the hospital.

Cone expressed a desire to employ plaintiff despite his medical limitations. Cone modified an existing third shift supply room position and offered it to him. Cone's attorney wrote plaintiff's attorney describing the position as follows:

( 1) The environment was lint and dust free;

(2) The lifting or physical exertion requirements were as light in this position as any other place in the plant;

(3) This position is currently being occupied by a female employee on other shifts, and this position is traditionally held by a female employee;

(4) At the time Mr. Peoples was offered this job, he was informed that it would not require any reduction in his current salary;

(5) The volume of work in this position is not great, and it would not be unusual for as much as an hour to pass at this job when there were no requests for orders to be filled;

(6) Although there may be heavier parts in the room, it is my understanding that 90% of the parts required to be moved would weigh five pounds or less. If there were objects that weighed more than this, or if there were objects that Mr. Peoples felt he could not lift, the fixer who had taken the order to the supply room would be available to assist or move the object himself.

... Additionally, Cone has indicated to me that it is perfectly agreeable with them for Mr. Peoples to attempt to come back to this job on a part-time basis rather than feel any pressure to work a full eight-hour day.

During the hearing Randolph Stephenson, personnel manager at Cone's Edna Plant, confirmed the supply room position remains available to plaintiff. He stated that because of plaintiff's limited ability to work the job description recited above should be modified to mean that plaintiff will not be required to lift any object. Because plaintiff will lift no parts, the person who comes to the supply room with a parts order will lift the requested part. Further, plaintiff will not have to engage in any physical activity of which he does not feel capable. He will work only the number of hours he desires and will not be required to work if he does not feel like doing so. Stephenson testified a job such as the one Cone offered plaintiff has never before existed at Cone's Edna Plant. It was created especially for plaintiff with his physical limitations in mind. Cone desires to retain plaintiff despite his limitations because of his "knowledge of the operation." Stephenson stated no person other than plaintiff would be hired to work in the supply room at the wages he was offered. Furthermore, there is no position at Cone other than the modified supply room job which plaintiff can fill.

The Industrial Commission employed an industrial hygienist, Melvin Witcher, to evaluate the dust content in the supply room at Cone's Edna Plant. Mr. Witcher testified the supply room area is "very clean." In it there is no appreciable accumulation of dust. He reported a dust concentration reading of ninety-eight micrograms per cubic meter, well below the five-hundred-microgram limit permitted by OSHA regulations. The ninety-eight-microgram reading is comparable to the dust level one would expect to find in a typical office room or outside on a clear fall day. Although the instruments he used provided a quantitative rather than a qualitative measure of dust, he believed much of the dust collected was nuisance dust or dust similar to that which would be found in a house or office.

Evidence relating to plaintiff's earning ability was presented to the Industrial Commission. Dr. Kilpatrick believed that plaintiff was unable to work in all but sedentary employment. Dr. Battigelli testified "even a menial, a minimal amount of activity indeed may be taxing Mr. Peoples' tolerance to a significant extent." Dr. Kilpatrick was not aware of a job situation a person with plaintiff's qualifications could do which did not require physical exertion. ²

Both physicians were of the opinion that plaintiff could not work in an environment in which he would be exposed to substantial quantities of cotton dust. Dr. Battigelli added, "I think cotton dust exposure as well as any exposure to any irritant will deteriorate his condition unequivocally."

Both physicians believed, however, an environment similar to that reported by Mr. Witcher as existing in the supply room would not be harmful to plaintiff's health. Dr. Kilpatrick testified:

Q. The quantity of dust, regardless of cotton dust, that would be necessary to aggravate or cause Mr. Peoples' problems, would have to be greater than is present in the type of office environment we're in right now, isn't that correct?

A. That's correct.

Dr. Battigelli gave similar testimony:

Now, Doctor, with regard to the position that has been offered and assuming the dust levels that are indicated as per the Industrial Hygiene Survey Report, which you have before you--do you have an opinion as to the suitability of that position for Mr. Peoples?

A. Yes, I do.

Q. All right, Doctor, what would that opinion be?

A. That in my view would be acceptable and compatible with my understanding of Mr. Peoples' ability to perform work--to sustain in--employment.

Dr. Thomas K. White, a psychologist with expertise in vocational rehabilitation and job skills testified: "Such an individual [as plaintiff] could not undertake a job existing in the regional and national economies in significant numbers." With respect to the job Cone offers plaintiff, Dr. White stated: "[I]n my review of the description of the job ... as compared with the jobs that are open in the market, it appears to me that there is not a job like that available anywhere to my knowledge.... I am not aware of a job on the market like that job." He explained:

I am not aware of any job on the market today similar to that job with the same pay scale.... [U]nder item 5, it says the volume of work in this position is not good. Traditionally, supply room jobs are characterized by a pretty fast pace, a brisk level of activity.... [T]his is not really a standard job which is in existence in the labor market but that this is going to be a tailored, engineered type of job.... Concerning the description in the beginning paragraph after paragraph 6 that that job would be available on a part-time basis and then convert to a full-time basis depending on the individual's feeling about work, that is unique.

Dr. White thought the job was ...