Cook v. Bladenboro Cotton Mills, Inc. , 61 N.C. App. 562 ( 1983 )

300 S.E.2d 852 (1983)

Etha Lanier COOK, Employee, Plaintiff,
v.
BLADENBORO COTTON MILLS, INCORPORATED, Employer,
Fireman's Fund Insurance Company, Carrier, Defendants.

No. 8210IC413.

Court of Appeals of North Carolina.

April 5, 1983.

Hassell, Hudson & Lore by R. James Lore, Raleigh, for plaintiff-appellant.

Teague, Campbell, Conely & Dennis by C. Woodrow Teague and George W. Dennis, III, Raleigh, for defendant-cross-appellant.

VAUGHN, Chief Judge.

Plaintiff argues that the Industrial Commission erred in not finding that she was disabled by an occupational disease and entitled to disability benefits under G.S. 97-29.

In general, an opinion and award of the Industrial Commission is conclusive on appeal if the findings of fact are supported by competent evidence, and the conclusions of law supported by the findings. Barham v. Food World, 300 N.C. 329, 266 S.E.2d 676, rehearing denied, 300 N.C. 562, 270 S.E.2d 105 (1980).

In this case, the Commission found that plaintiff sustained a permanent injury as a result of her occupational disease, and awarded her $3,000.00 under G.S. 97-31(24). The Commission, however, did not make any findings as to plaintiff's disability. Disability, as defined by G.S. 97-2(9), means "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." To support a conclusion of disability our Supreme Court has said the Commission must find the following three facts:

(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.

Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).

The Commission found that, except for an eight to ten month period, plaintiff's sole work experience, since she was twenty-five, was in defendant's cotton mill. A nonsmoker, she began to have respiratory problems in 1978. Dr. Hayes testified that plaintiff should not work in an area where she would be exposed to cotton dust. Since plaintiff was laid off, she unsuccessfully looked for a job at Highland Mills, the local employment office, and a retail store. There was some evidence that indicated plaintiff was not hired at Highland Mills because she did not score well enough on the pulmonary function test, which could have been due to her byssinosis. This evidence supported plaintiff's claim of disability. Although the Commission may accept or reject any of plaintiff's evidence, it must make specific findings as to the facts upon which a compensation claim is based, including the extent of claimant's disability. Priddy v. Cone Mills Corp., 58 N.C.App. 720, 294 S.E.2d 743 (1982); Hundley v. Fieldcrest Mills, 58 N.C.App. 184, 292 S.E.2d 766 (1982). We hold that plaintiff presented evidence of impairment of her wage earning capacity due to her occupational disease. The Commission, therefore, was required to either accept or reject any or all of plaintiff's evidence and make findings of fact as to whether plaintiff was disabled.

Defendant cross appeals, arguing that the Commission erred in awarding plaintiff $3,000.00 pursuant to G.S. 97-31(24) and in ordering defendant to provide plaintiff with bronchodialator treatment. G.S. 97-31(24) provides:

In case of the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under any other subdivision of this section, the Industrial Commission may award proper and equitable compensation not to exceed ten thousand dollars ($10,000). (Emphasis added).

Defendant contends the evidence does not support the finding that plaintiff's injury was permanent. We disagree. Dr. Hayes suggested plaintiff was permanently impaired when he testified that "bronchodialator medication would be a suitable short-term—meaning months to perhaps several years or more—way in which her symptoms could be minimized and her lung function brought closer to normal." As mentioned above, the Commission may accept or reject any or all of plaintiff's evidence. Clearly, the Commission chose to accept this evidence and found plaintiff was permanently impaired.

Defendant also contends that G.S. 97-31(24) does not apply to occupational diseases. We disagree. In both Priddy v. Cone Mills, supra, and Hundley v. Fieldcrest, supra, the plaintiffs suffered from byssinosis and were awarded benefits pursuant to G.S. 97-31(24) for their permanent injuries.

Defendant also argues that plaintiff has failed to show she is disabled. As we have mentioned above, there was some evidence which indicated plaintiff was disabled since she could not find another job after she was laid off. Because of this evidence the Commission must make findings of fact as to whether plaintiff suffered a loss to her earning capacity as a result of her occupational disease.

Remanded to the Industrial Commission for proceedings consistent with this opinion.

WEBB and EAGLES, JJ., concur.