Preslar v. Cannon Mills Co.

• Court: North Carolina Court of Appeals
• Writing for the Court: BECTON
• Citation: Preslar v. Cannon Mills Co., 343 S.E.2d 209, 80 N.C.App. 610 (N.C. App. 1986)
• Decision Date: 20 May 1986
• Docket Number: No. 8510IC705,8510IC705
• Parties: Pauline Morrison PRESLAR, Executrix of the Estate of Glyn G. Preslar, Employee, Plaintiff, v. CANNON MILLS COMPANY, Employer, Self-Insured Carrier-Defendant.

Page 209

343 S.E.2d 209

80 N.C.App. 610

Pauline Morrison PRESLAR, Executrix of the Estate of Glyn G Preslar, Employee, Plaintiff, v. CANNON MILLS COMPANY, Employer, Self-Insured Carrier-Defendant.

No. 8510IC705.

Court of Appeals of North Carolina.

May 20, 1986.

Lore & McClearen by R. James Lore, for plaintiff-appellee.

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

BECTON, Judge.

In this workers' compensation case, plaintiff's decedent, Glyn Presslar, was awarded partial disability compensation under N.C.Gen.Stat. Sec. 97-30 (1985). On appeal, defendant Cannon Mills does not contest the finding and conclusion that Glyn Preslar had an occupational lung disease. Cannon Mills contends only that the Commission erred in finding and concluding that Mr. Preslar's disease caused any disability.

I

Mr. Preslar was born in 1910. In 1933, with a ninth-grade education, he started working for Cannon Mills and continued there until April 1980. During his last twenty-five years, he was a weave room foreman, which required the same physical exertion as running looms. Before Mr. Preslar left in April 1980, he was given a pulmonary function test which showed abnormal pulmonary function and reactivity to cotton dust over the work shift.

Mr. Preslar returned to work for Cannon Mills in January 1981. On 20 January 1981, as part of his application for reemployment, he completed two questionnaires and submitted to a physical examination. The examiner reported that Mr. Preslar's lungs were clear and that there was no problem with his respiratory system. But the results of the pulmonary function tests were "unsatisfactory"--they showed "evidence of reduced ventilatory capacities." Dr. Vernon A. Burkhart, Director of Health and Occupational Environment at Cannon Mills, approved Mr. Preslar for employment notwithstanding the test results.

On 21 January 1981, Dr. Burkhart signed a memorandum which reads in its entirety Name Glyn George Preslar

SSN 243-01-8810

The results of your pre-employment respiratory tests conducted at Cannon Mills Company are interpreted to be within normal range. You have been found medically qualified for employment in a dust environment and to be able to wear a respirator when required.

According to Mr. Preslar, however, when he kept an appointment with Dr. Burkhart, the doctor told Mr. Preslar that he should not work in a dusty environment. Mr. Preslar quit his job as a spare weaver after only four days, but he testified at the hearing that he quit because he could not meet production. In Cannon Mills' medical file for Mr. Preslar, the following notations appear:

Patient okayed for employment on 1/20 with unsatisfactory PFT's. Discussed with Dr. Stephens. Scheduled to see me tomorrow. V.A.B.

Patient retired on 1/26. V.A.B.

This 70 year old retired weave room foreman is seen with PFT evidence of reduced ventilatory capacities. He recently returned to work as spare weaver but quit after 4 days because of technical difficulty running the looms. He had a severe bout of flu in mid-January and decided to stop smoking with 55 pack year history. His exercise tolerance is excellent for his age. He denies cough. There was no recall of work related symptoms. PFT shows COPD. In the absence of a bronchitic history I assume this to be due to emphysema. I have advised him to take flu shots annually and will give pneumovax 0.5cc today; usual early treatment for URI. He should not be employed in a dusty area. V.A.B.

After leaving his job as a spare weaver, Mr. Preslar applied for other jobs at Cannon Mills in dust-free environments, but without success. He continued to reapply for about one year, but he was never called back to Cannon Mills. Meanwhile, Mr. Preslar found work through the unemployment office as a part-time janitor cleaning and waxing floors. Mr. Preslar testified that he worked four hours per day, five days per week, for an hourly wage of $3.35. He also received social security payments. Mr. Preslar testified that he could have worked eight hours per day, but only four hours were needed to do the job each day, and no additional hours were available. He stopped working after about one year because the janitorial company went out of business.

Mr. Preslar testified before the deputy commissioner that he enjoyed good health while at Cannon Mills and rarely missed work. He also stated, "I retired [in 1980] because I was 70 years old. I could have retired at age 65, but I elected to work on until I was 70." His general health remained good at the time of the hearing, except for an irregular heartbeat.

Dr. Douglas Kelling, Jr., testified as an expert witness. With regard to whether Mr. Preslar's occupational disease caused his inability to work, Dr. Kelling testified that Mr. Preslar's 1980 retirement was not a result of medical problems and that "he could have continued to work at his job at Cannon Mills." Dr. Kelling also testified that Mr. Preslar had indicated that he first experienced shortness of breath in about 1964, but that he was never so short of breath that he could not work. It was Dr. Kelling's opinion that Mr. Preslar's ability to work was limited to some extent in 1984, that he had a thirty to forty percent respiratory impairment, and that there was no significant change in his ability to work from 1980 to 1984 when Dr. Kelling examined him. Mr. Preslar was just "a little older." Dr. Kelling also testified that "I would not recommend that Mr. Preslar return to work in an area in which he would be exposed to respirable cotton dust."

II

The now-familiar task for the Industrial Commission was stated in Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982) (citation omitted):

[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.

The Commission is the sole judge of the credibility of the evidence. Although its legal conclusions are reviewable on appeal, the Commission's findings of fact are conclusive if there is competent evidence to support them. Id. This Court's inquiry is limited to two issues: whether the Commission's findings of fact are supported by competent evidence and whether its conclusions of law are justified by the findings of fact. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E.2d 101 (1981).

Cannon Mills contends that the finding of fact that Mr. Preslar is partially disabled as a result of his occupational disease is not supported by competent evidence and that, therefore, the conclusion of law to the same effect cannot stand. We disagree.

A

As Cannon Mills correctly points out, a finding or conclusion of disability must be based on the inability to earn wages, not on physical infirmity, and the degree of disability is measured by wage-earning power. Hall v. Thomason Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857 (1965); Hill v. DuBose, 234 N.C. 446, 67 S.E.2d 371 (1951). There is ample evidence that Mr. Preslar was unable to earn the "same wages he had earned before his injury in the same employment" at Cannon Mills. Although Mr. Preslar apparently retired in 1980 because of his age, and again in 1981 because of his inability to meet production, both Dr. Kelling and Dr. Burkhart (of Cannon Mills) were of the opinion that Mr. Preslar should not work in a dusty environment. The fact that he was able to do physical work does not necessarily mean that he was able to earn the same wages he could earn before he was restricted to working in dust-free areas. Hilliard.

Even though Mr. Preslar retired for other reasons, he was unable, based on expert medical testimony, to safely resume his employment in a dusty environment. We would indulge an unrealistic abstraction to rule as a matter of law that an individual with an occupational lung disease still has the capacity to earn wages at a certain job, despite evidence that to earn those wages the individual would have to disregard medical advise and seriously risk his or her health, simply because that individual still has the ability physically to perform the required tasks. Expert medical testimony that a person with an occupational lung disease should not continue to work in cotton dust is sufficient to prove inability to earn wages in a job necessarily entailing exposure to cotton dust. We do not require claimants to continue working until the occupational lung disease advances to a crippling stage causing sufficiently extensive permanent damage to prevent physical movement. In short, we hold that there was evidence that Mr. Preslar's environmental constraint, which clearly was substantially caused by his occupational disease, caused his inability to work at his old job at Cannon Mills.

B

There was also competent evidence that Mr. Preslar was unable to earn the same wages at any other employment. In making this determination, characteristics peculiar to the claimant, such as age, education, experience and health, may be considered. Peoples v. Cone Mills Corp., 316 N.C. 426, 342 S.E.2d 798 (1986); Hilliard; Armstrong v. Cone Mills Corp., 71 N.C.App. 782, 785, 323 S.E.2d 48, 50 (1984). The claimant must show that he or she is unable to find other employment at the same wages. Hundley v. Fieldcrest Mills, 58 N.C.App. 184, 292 S.E.2d 766 (1982); Priddy v. Cone Mills Corp., 58 N.C.App. 720, 294 S.E.2d 743 (1982).

Mr. Preslar applied for work in dust-free areas at Cannon Mills for about one year. And although Mr. Preslar had worked in the textile industry for forty-seven years, he looked for employment outside the textile industry, where he found a job as a janitor. The...