Young v. Whitehall Co.

• Decision Date: 20 October 1948
• Docket Number: 236
• Parties: YOUNG v. WHITEHALL CO., Inc., et al.
• Court: North Carolina Supreme Court

49 S.E.2d 797

229 N.C. 360

YOUNG v. WHITEHALL CO., Inc., et al.

No. 236

Supreme Court of North Carolina

October 20, 1948

This is a proceeding in which the plaintiff, Jess Young, asserts that he has suffered permanent and total disablement by the occupational disease of silicosis and asks compensation accordingly of the defendants Whitehall Company, Incorporated, his last employer, and Liberty Mutual Insurance Company, its insurance carrier under the general provisions of the North Carolina Workmen's Compensation Act. G.S. s 97-1 et seq. The defendants concede that all parties are subject to the act assert that plaintiff is a proper subject for compulsory change of occupation under G.S. s 97-61, accept liability to plaintiff for the restricted compensation and readjustment benefit specified in G.S. s 97-61, and maintain that plaintiff is not entitled to any further relief under any other provisions of the act.

The data set out in this paragraph is gleaned from records kept by the North Carolina Industrial Commission, the Advisory Medical Committee, and the Division of Industrial Hygiene of the State Board of Health, and received in evidence without objection at the hearing. Plaintiff was born May 14, 1901. He became a miner at seventeen years of age, and earned his living by mining kaolin, mica, and feldspar from that time until May 24, 1946, when he was denied further employment in the mining industry on account of silicosis. While such does not appear as an absolute fact, it is intimated that all of the exposure of the plaintiff to the inhalation of silica dust took place in North Carolina. Be this as it may, he spent the seven years next preceding May 24, 1946, working in the feldspar mines of his last employer, the Whitehall Company, in this State. On various occasions, he was examined for silicosis in conformity to G.S. s 97-60. It was observed as early as October 27, 1936, that he suffered fibrosis of the lungs and shortness of breath, symtomatic of the presence of silicosis in some degree. X-ray photographs at subsequent examinations disclosed a progressive increase in the fibrotic condition of his lungs. Pursuant to a recommendation made by the Division of Industrial Hygiene in September, 1939 plaintiff was transferred to open cut mining in order that his exposure to silica dust might 'be considerably less than that usually found in underground mining. ' The physicians making the statutory examinations in 1944, 1945, and 1946, found that the plaintiff was suffering from the second of the three recognized stages of silicosis, and urged that he 'be removed from any further dusty exposure. ' On May 24, 1946, plaintiff was laid off by his last employer, the Whitehall Company, because he had silicosis, and notice of his claim of occupational disease disability was filed with the Industrial Commission. Four days later, the Industrial Commission summarily issued the following order to the plaintiff:

'Upon the completion of the studies of your recent examination, the Advisory Medical Committee has advised the Commission that you have silicosis and that it is inadvisable for you to continue working in siliceous dust. In this the Commission concurs. The Commission finds as a fact that you will be benefitted by being taken out of your present employment with the Whitehall Company, and hereby directs that you be removed from such hazardous employment within 60 days from date of this letter, unless for special reason this time should be extended upon approval of the Commission. * * * The Commission hopes that you can be transferred to some non-dust-hazardous job with your present employer; but if not, you are entitled to be compensated as for temporary total disability until you can obtain employment in some other occupation in which there is no hazard of such occupational disease. Compensation is limited to 20 weeks without dependents, 40 weeks with dependents, and for special training benefits not to exceed $300 and $500 respectively. Read Section 97-61. Provided your exposure meets the requirements of Section 97-63.'

The plaintiff offered evidence before the hearing Commissioner tending to show that he had not been able to do any work whatever subsequent to May 24, 1946, because of shortness of breath and incessant pain in his chest resulting from silicosis. His medical witness, Dr. C. D. Thomas, Director of the Western North Carolina Sanitorium, expressed the opinion based upon his knowledge of the plaintiff's condition that the plaintiff was actually incapacitated by silicosis from performing normal labor in the last occupation in which he was remuneratively employed, and that the plaintiff's disease was progressing and would probably become worse.

The defendants presented testimony before the hearing Commissioner tending to show that the plaintiff worked with regularity until May 24, 1946; that subsequent thereto he applied for and obtained unemployment compensation for twenty weeks, representing to the North Carolina Unemployment Compensation Commission that he was willing to work if he could find something light; and that after his removal from work in the feldspar mine of the Whitehall Company he declined to accept vocational training tendered him by the State Division of Vocational Rehabilitation upon the ground that he 'did not figure that he could handle a job. ' The defendants offered Dr. Otto J. Swisher, Director of the Division of Industrial Hygiene of the State Board of Health, as a medical witness. Dr. Swisher based his testimony upon the case history of the plaintiff and certain X-ray photographs rather than upon any personal knowledge of the plaintiff's state. He expressed the opinion that the plaintiff was afflicted by the first stage of silicosis, and that he 'could do light work if there was no silica dust involved. ' He stated on cross-examination that in his judgment the plaintiff was actually incapacitated by silicosis from performing normal labor in the last occupation in which he was employed.

Upon the evidence adduced, the hearing Commissioner made the following findings of fact, conclusions of law, and award: 'The Commissioner finds it as a fact that the claimant is not disabled from doing ordinary work. However, the Commissioner does find that it is for the best interest of the claimant not to work in a dusty trade; and it is, therefore, directed that he be not employed by any other person in a dusty occupation. The Commissioner does find, however, that the claimant is entitled to the benefits provided in the Act, Section 97-60 and 97-61, where an employee is removed from the employment for the good of his health and is not disabled from doing work in which there is no dust hazard. The Commissioner further finds that the claimant in this case is a married man and has a family and is, therefore, entitled to forty weeks disability based upon his wages. It is, therefore, directed that an award issue requiring the defendants to pay the claimant compensation for a period of forty weeks at $21.00 per week, and all hospital and medical bills up to the date of this order when submitted to and approved by the Industrial Commission.'

The plaintiff appealed to the Full Commission, which affirmed the findings of fact, conclusions of law, and award of the hearing Commissioner. The plaintiff then prosecuted an appeal to the Superior Court of Mitchell County, where the proceeding arose, and the Superior Court entered judgment setting aside the award of the Industrial Commission upon the ground that the findings of fact were insufficient for a proper determination of the questions raised and remanding the proceeding to the Industrial Commission for further findings. The defendants thereupon appealed to this Court from the judgment of the Superior Court.

Proctor & Dameron, of Marion, for plaintiff-appellee.

Harkins, Van Winkle & Walton, of Asheville, for defendants-appellants.

ERVIN Justice.

As originally adopted in 1929, the North Carolina Workmen's Compensation Act provided merely for compensation for the death or disability of a workman resulting from injury by accident arising out of and in the course of his employment. G.S. s 97-2. In 1935, an amendment broadened the scope of the Act by making compensable twenty-five designated occupational diseases, including asbestosis and silicosis. G.S. s 97-53.

In thus extending the coverage of the statute, the legislature expressly decreed that disablement or death of a workman from a designated occupational disease 'shall be treated as the happening of an injury by accident within the meaning of the North Carolina Workman's Compensation Act and the procedure and practice and compensation and other benefits provided by said act shall apply in all such cases except as hereinafter otherwise provided. ' G.S. s 97-52. It is otherwise provided in later sections of the amending statute with respect to asbestosis and silicosis in several material particulars. G.S. ss 97-54 to 97-76.

A proper consideration of the special provisions of the statutes relating to asbestosis and silicosis must rest upon a conviction that in passing these laws the legislature gave due heed to the nature of these diseases.

The definition of silicosis itself makes it plain that the legislators approved the amendment covering occupational diseases with full knowledge that silicosis is a disease of the lungs contracted by breathing air containing silica dust. G.S. s 97-62. Besides, an analysis of the pertinent sections as a whole indicates that the law makers acted with an awareness of the discoveries of medicine and industry that silicosis is characterized by shortness of breath, decreased chest expansion, lessened capacity for work, reduced vitality, and a marked susceptibility...