Singleton v. D. T. Vance Mica Co.

• Decision Date: 26 March 1952
• Docket Number: No. 239,239
• Citation: 69 S.E.2d 707,235 N.C. 315
• Parties: SINGLETON, v. D. T. VANCE MICA CO.
• Court: North Carolina Supreme Court

Page 707

69 S.E.2d 707

235 N.C. 315

SINGLETON, v. D. T. VANCE MICA CO.

No. 239

Supreme Court of North Carolina.

March 26, 1952

Uzzell & DuMont, Asheville, attorneys for defendants, appellants.

Charles Hughes, Newland, attorney for claimant, appellee.

DENNY, Justice.

This appeal challenges certain findings of fact made by the hearing Commissioner, which findings were upheld by the Full Commission and sustained by the trial judge on appeal to the Superior Court. The challenge to these findings presents the following questions: (1) Is there any competent evidence to support the finding that the claimant was first notified by competent medical authority on or about 5 March, 1949, that he had silicosis? (2) Is the finding that the claimant became disabled within the meaning of G.S. § 97-54, within two years of his last injurious exposure to the hazards of silicosis, as provided in G.S. § 97-58(a), supported by competent evidence? (3) May the Commission consider evidence other than expert medical testimony in finding that disablement of a claimant occurred within two year from date of last exposure to the hazards of silicosis?

There is no evidence on this record to the effect that any notice was given to the claimant advising him that he had silicosis prior to his receipt of a copy of the letter written by Dr. J. A. Byrnes, resident physician, Western North Carolina Sanatorium, Black Mountain, North Carolina, addressed to the Health Department, Newland, North Carolina, dated 21 February, 1949, which copy was forwarded to claimant on or about 5 March, 1949, and received by him in due course of mail. There is an indication that a copy of the letter written by the Director of the Division of Industrial Hygiene, addressed to Vance-Barrett, Inc., Plumtree, North Carolina, dated 17 August, 1942, was mailed to the claimant. The letter was introduced in evidence by the defendants and the following notation appears thereon: 'cc: Mr. Sam L. Singleton, N. C. Industrial Commission, Compensation Rating & Inspection Bureau (2).' Conceding that the claimant received a copy of this letter, as the defendants contend, it should be noted that it is only stated in the letter that the examination reveals, 'evidence of dust disease,' and a mere suggestion, not a recommendation, that the claimant 'be transferred to some other location in your organization where the dust hazard would be negligible.'

Advising an employee, who has been exposed to free silica dust, that his examination reveals 'evidence of dust disease,' is not sufficient to put him on notice that he has silicosis. Autrey v. Victor Mica Co., 234 N.C. 400, 67 S.E.2d 383.

Moreover, the information given in the above letter did not reveal the seriousness of the condition of Sam Singleton at that time. The true condition of the employee was not disclosed in the letter, but was revealed only to the Industrial Commission in a footnote added to a copy thereof. The record report of the examination of Sam Singleton on 10 August, 1942, upon which the information contained in the above letter purports to have been based, shows more than mere 'evidence of dust disease.' The record reveals that Mr. Singleton stated he had been 'short of breath for 2 years,' and the interpretation of the X-ray made at that time revealed, as compared with previous film of 18 November, 1936, 'a slight increase in fibrosis with final diagnosis of moderately advanced silicosis.' The Director of the Division of Industrial Hygiene evidently realized his letter did not disclose the true condition of the employee, otherwise it would not have been necessary to add the following statement on the copy to the Industrial Commission: 'This man is 61 years old. He has a history of approximately 30 years in mica. He now has moderately advanced silicosis. Unless his present employer can transfer him to some suitable location, where his dust exposure will be negligible, we have little to suggest for him. We doubt the advisability of trying to rehabilitate him.'

Furthermore, there is no evidence in the record showing that the diagnostic findings, resulting from the examination of the plaintiff on 18 November, 1936, which disclosed that he had 'pneumoconiosis, second stage, without definite symptoms,' or from his examination on 8 October, 1943, which revealed that he had 'Silicosis II, progressing,' were communicated to him or to his employer.

In our opinion the evidence does support the finding of the hearing Commissioner to the effect that the claimant was first notified by competent medical authority on or about 5 March, 1949, that he had silicosis.

On the second question, it is apparent from the claimant's testimony and the notice and claim filed by him, that he was under the impression that disablement meant inability to do work of any kind. It is clear he did not comprehend the distinction between disablement as defined in G.S. § 97-54, and ordinary disability as defined in G.S. § 97-2. This distinction was clearly pointed out in the case of Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 801, by Justice Ervin in speaking for the Court, in which he said: 'It is to be noted that there is a radical difference between the criterion of disability in cases of asbestosis and silicosis and that of disability in cases of injuries and other occupational diseases. An employee is disabled by injury or an ordinary occupational disease within the purview of the Workmen's Compensation Act only if he suffers incapacity because of the injury or disease to earn the wages which he was receiving at the time of the injury or disease in the same or any other employment. G.S. § 97-2. But a worker is disabled in cases of asbestosis or silicosis if he is 'actually incapactiated, because of such occupational disease, from performing normal labor in the last occupation in which remuneratively employed'. G.S. § 97-54.' Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410.

The question of claimant's disablement is, therefore, not whether he became incapacitated to do work of any kind within two years of his last exposure to the hazards of silicosis, but whether he became disabled or incapacitated within two years of his last exposure to free silica dust, 'from performing normal labor in the last occupation in which remuneratively employed'. G.S. § 97-54; Duncan v. Carpenter, supra.

The defendants contend there is no causal connection between the plaintiff's alleged disability which occurred after he left the employment of the defendant employer, and his silicotic condition which was contracted prior to November 1936. This contention is without merit. It is provided in G.S. § 97-57: 'In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.' Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E.2d 274. And this section further provides, 'when an employee has been exposed to the hazards of asbestosis or silicosis for as much as thirty working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious * * *.' Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275.

There can be no serious question about the plaintiff having been exposed to free silica dust for more than 30 years. Neither can there be any doubt about his having been exposed to the hazards of silicosis for as much as thirty working days or parts thereof, within seven consecutive calendar months, immediately preceding 16 September, 1944, the date he left the employment of the defendant employer.

This plaintiff is clearly entitled to compensation if his disablement occurred within two years from the time he left the employment of David T. Vance, and such disablement resulted from silicosis. Duncan v. Carpenter, supra. The plaintiff testified that he became disabled to work about a year after he quit the mill and there is no evidence to the contrary. And the fact that he was not certain when he quit the mill is of no material...