Pitman v. Feldspar Corp., 8710IC148

• Decision Date: 06 October 1987
• Docket Number: No. 8710IC148,8710IC148
• Citation: 360 S.E.2d 696,87 N.C.App. 208
• Parties: Lewis R. PITMAN, Employee, v. The FELDSPAR CORPORATION, Employer, National Union Fire Insurance Company, Carrier.
• Court: North Carolina Court of Appeals

Page 696

360 S.E.2d 696

87 N.C.App. 208

Lewis R. PITMAN, Employee, v. The FELDSPAR CORPORATION, Employer, National Union Fire

Insurance Company, Carrier.

No. 8710IC148.

Court of Appeals of North Carolina.

Oct. 6, 1987.

G.D. Bailey and J. Todd Bailey, Burnsville, for plaintiff-appellee.

Teague, Campbell, Dennis and Gorham by George W. Dennis, III and Linda Stephens, Raleigh, for defendant-appellants.

BECTON, Judge.

This action involves a claim for benefits under the Workers Compensation Act, N.C.Gen.Stat. Chapter 97 (1985). The defendants stipulated that Plaintiff, Lewis R. Pitman, contracted the occupational disease silicosis under compensable circumstances, and voluntarily paid benefits to him for 104 weeks pursuant to N.C.Gen.Stat. Sec. 97-61.5. The matter then came before the Industrial Commission for a determination of what, if any, further benefits Plaintiff was entitled to receive for total or partial disability.

After hearing testimony and reviewing medical reports, Deputy Commissioner Shuford found facts and awarded Plaintiff total disability benefits. Defendants appealed to the Commission which filed a decision on 28 August 1986, affirming and adopting as its own Commissioner Shuford's opinion and award. Defendants appeal. We vacate the award and remand for further findings of fact.

I

The evidence before the Commission included testimony by Plaintiff, three reports of the Advisory Medical Committee, and deposition testimony and medical reports from Dr. Douglas G. Kelling, Jr.

Plaintiff was employed as a mechanic by defendant, Feldspar Corporation, for 23 years. The job involved heavy work and lifting, and exposed Plaintiff to substantial amounts of silica dust.

Plaintiff stopped working in April 1982 when silicosis was diagnosed. His testimony tends to show that he has been unemployed since that time due to shortness of breath and chest pain associated with exertion such as carrying groceries or climbing steps. He stated that he does no house or yard work and that he knows no other jobs he could get and perform.

The impression of the Advisory Medical Committee in its first report dated 25 March 1982 was that the Plaintiff had "silicosis, Grade II with 40% disability." That report was revised in a second report, dated 4 March 1983, to "silicosis, Grade II, with 70% disability." The Committee's third and final report, dated 2 April 1984, concluded that Plaintiff had "Silicosis, Grade II, 100% disability." Each report concluded that Plaintiff should have no further exposure to silica.

Plaintiff was seen by Dr. Kelling once, in December 1983. Dr. Kelling disagreed with the Medical Committee's conclusion of total disability, believing that Plaintiff was capable of performing certain jobs. It was his opinion that Plaintiff had silicosis, and an obstructive lung disease possibly due to cigarette smoking and/or asthma; that as a result, Plaintiff suffered a 30 to 40 percent pulmonary impairment; and that approximately 50 percent of the overall respiratory impairment was neither caused, aggravated, or accelerated by exposure to silica dust.

In his Opinion, Deputy Commissioner Shuford recited the stipulations of the parties and then made the following additional findings of fact:

1. Plaintiff was examined by the Advisory Medical Committee to the Industrial Commission consisting of Dr. Hillis L. Seay, Dr. O.L. Henry, Jr., and Dr. H.F. Easom on two occasions, the last examination being on or about 2 April 1984. Plaintiff was also examined on 20 December 1983 by Dr. Douglas C. Kelling, Jr. The findings and opinions of such doctors have been received as evidence in this case.

2. Plaintiff was born on 6 June 1926 and has a sixth-grade education. His last job was with defendant-employer where he worked for 23 years. Plaintiff was a mechanic and engaged in repairing pumps and other heavy equipment which involved heavy lifting. Plaintiff last worked on 15 April 1982 and he has not been able to work since that time. Plaintiff's physical condition has worsened since he quit work and he is now unable to exert himself.

He feels he has "got no breath to do anything" and knows of no job that he would be able to perform. Plaintiff just sits around his home and engages in no cleaning or yard work. He does not take oxygen because he is afraid that if he would do so he would be unable to "get off" oxygen.

3. Plaintiff is totally disabled because of his pulmonary condition. The occupational disease silicosis makes a very significant contribution to Plaintiff's total disability.

Based upon these findings, he then concluded as a matter of law that "Plaintiff is totally disabled by reason of his pulmonary condition and the disease silicosis from which he suffers makes a significant contribution to Plaintiff's disability," and awarded Plaintiff $184.00 per week "until such time as Plaintiff has a change of condition."

II

The scope of judicial review of decisions of the Industrial Commission is limited to a determination of (1) whether the findings of fact are supported by competent evidence, and (2) whether the findings justify the legal conclusions and the award. E.g., Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676 (1980); Guy v. Burlington Industries, 74 N.C.App. 685, 329 S.E.2d 685 (1985). Findings of fact made by the Commission are conclusive and binding on appeal when supported by any competent evidence. McLean v. Roadway Express, Inc., 307 N.C. 99, 296 S.E.2d 456 (1982); Robinson v. J.P. Stevens & Co., 57 N.C.App. 619, 292 S.E.2d 144 (1982). The findings must be specific with respect to each material fact upon which the Plaintiff's right to compensation depends, e.g., Guy, 74 N.C.App. at 689, 329 S.E.2d at 688, and if they are insufficient to enable the Court to determine the rights of the parties upon the matters in controversy, the cause must be remanded to the Commission for proper findings, e.g., Moore v. J.P. Stevens & Co., 47 N.C.App. 744, 269 S.E.2d 159, disc. review denied, 301 N.C. 401, 274 S.E.2d 226 (1980).

In ascertaining the right to compensation in cases involving occupational diseases such as silicosis, the Industrial Commission must ordinarily determine 1) whether the plaintiff in fact has an occupational disease, 2) whether, and to what extent, the plaintiff is disabled within the meaning of N.C.Gen.Stat. Sec. 97-54, and 3) to what degree any such disability is caused by the occupational disease. In the case before us, because the existence of the occupational disease silicosis under compensable circumstances is undisputed, the issues are limited to the degree of disability and causation.

A

Although conceding that, due to his silicosis, Plaintiff should not or cannot perform his former work, Defendants contend that the Commission erred by failing to make sufficiently specific findings regarding Plaintiff's present ability to perform other jobs to support its conclusion that Plaintiff is totally disabled. Defendants further except to the findings that Plaintiff "has not been able to work" since April 1982, that he is "now unable to exert himself," and that he "is totally disabled because of his pulmonary condition," contending that they are unsupported by the evidence. We disagree.

"Disablement," in silicosis cases, means "becoming actually incapacitated because of ... silicosis to earn, in the same or any other employment, the wages which the employee was receiving at the time of his last injurious exposure to ... silicosis," N.C.Gen.Stat. Sec. 97-54, and is equivalent to "disability" as defined by N.C.Gen.Stat. Sec. 97-2(9). Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 186, 345 S.E.2d 374, 378 (1986). In Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982), the Supreme Court stated that:

... [i]n 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.

Id. at 595, 290 S.E.2d at 683. The Court applied the same standard to an occupational disease case in Hendrix.

In this case, it is undisputed that Plaintiff is unable to earn the same or any wages in his previous employment. Defendants apparently object to the lack of a specific finding stating that Plaintiff is unable to earn wages at other employment. The Commission did, however, find that Plaintiff has "not been able to work" since leaving his employment at Feldspar Corporation, and that Plaintiff is "totally disabled." Although these findings should have been stated more definitively in terms of the Hillard standard, we conclude that, taken together with the additional findings regarding Plaintiff's age, limited education, work experience, worsened physical condition, and inability to exert himself, the findings of fact support a conclusion that Plaintiff is unable to earn wages at any job, and are "minimally sufficient" to satisfy the Hillard test. See Hendrix, 317 N.C. at 187, 345 S.E.2d at 379. See also Mabe v. N.C. Granite Corp., 15 N.C.App. 253, 189 S.E.2d 804 (1972).

Moreover, Defendants are incorrect in their assertion that undisputed evidence shows Plaintiff capable of earning wages in other employment. Although Dr. Kelling opined that Plaintiff "could perform truck driving, security work, or working in a supermarket or convenience food store, production line or sales jobs, and other jobs not including heavy lifting," that evidence was contradicted by Plaintiff's own testimony regarding his age, education, shortness of breath, incapacity to work, and the effect that physical exertion has upon him, all of which is competent evidence. See Singleton v. D.T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707 (1952). Furthermore, the Advisory Medical...