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Hyatt v. Mills

Filed: February 16, 1982.

WALTER HYATT, EMPLOYEE, PLAINTIFF
v.
WAVERLY MILLS, EMPLOYER, AND TRAVELERS INSURANCE COMPANY, CARRIER, DEFENDANTS.



Appeal by defendants and cross-appeal by plaintiff from Industrial Commission. Opinion and award entered 23 February 1981. Heard in the Court of Appeals 11 December 1981.

Wells, Judge. Judges Arnold and Martin (Harry C.) concur.

Wells

In their first and third assignments of error, defendants contend that the Commission erred in finding that plaintiff is permanently and totally disabled as a result of chronic obstructive lung disease which plaintiff contracted as a result of his exposure to cotton dust during his employment as a textile worker. Defendants' argument takes two tacks: one, that the evidence does not

support a finding of total disability; and two, that the evidence does not support a finding that plaintiff's disability was caused solely by his exposure to cotton dust in his employment. The standard of review of such findings by the Commission is well established. We quote from the opinion of our Supreme Court in Walston v. Burlington Industries, 304 N.C. 670, 285 S.E.2d 822 (1982).

Except as to questions of jurisdiction, the rule is that the findings of fact made by the Commission are conclusive on appeal when supported by competent evidence. This is so even though there is evidence to support a contrary finding of fact. Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E.2d 364 (1980); Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E.2d 449 (1977); Anderson v. Construction Co., 265 N.C. 431, 144 S.E.2d 272 (1965); Rice v. Chair Co., 238 N.C. 121, 76 S.E.2d 311 (1953); Henry v. Leather Co., 231 N.C. 477, 57 S.E.2d 760 (1950). The appellate court does not retry the facts. It merely determines from the proceedings before the Commission whether sufficient competent evidence exists to support its findings of fact. Moses v. Bartholomew, 238 N.C. 714, 78 S.E.2d 923 (1953).

See also Morrison v. Burlington Industries, 304 N.C. 1, 282 S.E.2d 458 (1981); Harrell v. J. P. Stevens & Co., Inc., 54 N.C. App. 582, 284 S.E.2d 343 (1981). Defendants' argument as to plaintiff's degree of disability rests entirely on Dr. Woolfolk's statement that plaintiff was totally disabled "as of now" and Dr. Williams' statement that plaintiff was disabled for "anything except sedentary occupation in a very clean environment". The Commission found that plaintiff was permanently disabled as of the date of his retirement on 6 May 1978. Dr. Woolfolk's testimony that plaintiff was totally disabled as of the date of his testimony on 10 October 1979, eighteen months after plaintiff's retirement for disability, supports and enforces the Commission's findings and does not detract from or contradict them. As for Dr. Williams' evaluation of plaintiff's ability to work only at sedentary jobs in a very clean environment, such testimony must be evaluated in the light of plaintiff's education, training, and employment history. The question is what effect the disabling disease has had upon this particular plaintiff. Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978); Mabe v. Granite Corp., 15 N.C. App. 253, 189 S.E.2d

804 (1972). Plaintiff's age, education, training, and work experience do not suggest a reasonable probability probability that he could obtain employment in anything but a manual labor environment, since that is all he has ever done. See Little, supra. The Commission's findings as to his total disability, as these terms are used in our Workers' Compensation Act, G.S. 97-2(9) and G.S. 97-55, are clearly and amply supported by the evidence. Little, supra. See Anderson v. Smyre Mfg. Co., 54 N.C. App. 337, 283 S.E.2d 433 (1981).

Defendants also argue that the evidence shows that plaintiff's disability was due in part to angina, pointing to Dr. Woolfolk's testimony. Dr. Woolfolk did not examine plaintiff and diagnose angina until 14 April 1979, almost eleven months after plaintiff became disabled for work. Defendants' argument is without merit. The injury resulting in disability due to a compensable disease occurs when the claimant becomes disabled. Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). The onset of other non-work-related diseases or infirmities following the work-related injury, i.e., the work-related disablement, does not affect in any way plaintiff's entitlement to compensation as of the date of his work-related injury.

Next, defendants argue that the evidence does not support a finding that the sole cause of plaintiff's disability was his occupational exposure to cotton dust and that the medical evidence before the Commission was not sufficiently definite on the cause of plaintiff's disability to permit effective appellate review. In support of this argument, defendants cite our Supreme Court's order in Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E.2d 364 (1980). We recognize that the court's order in Morrison, supra, and its subsequent opinion in Morrison, reported at 304 N.C. 1, 282 S.E.2d 458 (1981) establish the standards by which we must resolve this issue. It is thus appropriate that we review the history of and the issue involved in Morrison in some detail. Morrison arrived at this court in the context of an appeal by plaintiff from an opinion and award in which the Industrial Commission, though finding plaintiff to be totally and permanently disabled, awarded her only partial compensation on the grounds that the medical evidence in the record showed that her total disability was due in part to non-occupational diseases or infirmities. In a

two to one decision*fn1 we held that the Commission was without authority to apportion plaintiff's disability where the evidence showed that her occupational disease was the precipitating cause of her inability to work. On appeal, our Supreme Court issued its 1980 order, supra, remanding the case directly to the Commission for further proceedings. In its order, the court stated that the medical evidence before the Commission was not sufficiently definite on the cause of plaintiff's ...


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