Gibson v. Little Cotton Mfg. Co. , 73 N.C. App. 143 ( 1985 )

325 S.E.2d 698 (1985)

James Thomas GIBSON, Employee, Plaintiff,
v.
LITTLE COTTON MFG. COMPANY, Employer, and
Home Indemnity Company, Carrier, Defendants.

No. 8410IC535.

Court of Appeals of North Carolina.

February 19, 1985.

Charles R. Hassell, Jr., Raleigh, for plaintiff-appellant.

Hedrick, Eatman, Gardner, Feerick & Kincheloe by John F. Morris and Edward L. Eatman, Jr., Charlotte, for defendants-appellees.

MARTIN, Judge.

The only questions before us on appeal are whether the Industrial Commission erred in apportioning plaintiff's 35 percent disability after finding that cotton dust significantly contributed to plaintiff's disease and in failing to consider whether plaintiff's work experience, age, education, and health entitled him to full compensation.

The Commission correctly made a finding that plaintiff's disability was caused by his exposure to cotton dust, and that plaintiff's exposure significantly contributed to or was a causal factor of his chronic obstructive lung disease; however, it incorrectly apportioned plaintiff's disability by finding that 25 percent of his 35 percent disability was due to cotton exposure. See, Adkins v. Fieldcrest Mills, Inc., 71 N.C.App. 621, 322 S.E.2d 642 (1984). This finding, that exposure to cotton dust significantly contributed to this disease, is all that is required because apportionment between causal factors is no longer the standard for disability compensation in these cases. Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983). The North Carolina Supreme Court in Rutledge, decided subsequent to the Deputy Commissioner's opinion and award in this case, stated the legal standard to determine whether a claimant suffering from chronic obstructive lung disease has a compensable occupational disease under G.S. 97-53(13):

[T]he occupation in question [must have] exposed the worker to a greater risk of contracting this disease than members of the public generally, and provided the worker's exposure to cotton dust significantly contributed to, or was a significant causal factor in, the disease's development. This is so even if other non-work-related factors also make significant contributions, or were significant causal factors. (Emphasis supplied).

308 N.C. at 101, 301 S.E.2d at 369, 370. We thus affirm the Commission's finding that plaintiff's cotton dust exposure was significant in the causation, acceleration and aggravation of his occupational disease, but reverse that portion of the Commission's opinion and award apportioning plaintiff's disability.

The Commission's findings are insufficient with regard to whether plaintiff is partially or totally disabled. Loss of earning capacity is the criterion by which disability is measured. Dail v. Kellex Corp., 233 N.C. 446, 64 S.E.2d 438 (1951). The percentage of impairment and percentage of disability are thus not necessarily identical. Parrish v. Burlington Industries, Inc., 71 N.C.App. 196, —, 321 S.E.2d 492, 495 (1984). In this case, the Commission adopted the Deputy Commissioner's opinion and award which contained only the following with regard to plaintiff's earning capacity:

As a result of his chronic obstructive lung disease, plaintiff has a Class III, or 35 percent, respiratory impairment which is permanent. His respiratory impairment is thus moderate in degree and is sufficiently severe to prevent him from performing manual labor. However, he is capable of performing moderate activity, although he should not be exposed to noxious substances including cotton dust. Plaintiff therefore has a permanent, partial incapacity to work and earn wages in the same or any other employment as a result of his respiratory impairment.

Merely finding, as the Commission does here, that plaintiff has an overall impairment of a certain percentage does not resolve the dispositive issue of plaintiff's incapacity to earn wages, however, since the Commission must also ascertain the percentage of plaintiff's inability to work caused by his occupational disease and not merely the percentage of impairment. Parrish v. Burlington Industries, Inc., supra. We have also recently held that the Commission must additionally weigh and consider plaintiff's age, education, experience and health and how these factors have affected plaintiff's ability to earn wages in the same or any other employment. Armstrong v. Cone Mills Corp., 71 N.C.App. 782, 323 S.E.2d 48 (1984). A claimant, though physically capable, may be unsuited for employment due to characteristics peculiar to him. Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978).

Since it is not evident from the record that the Commission considered these factors before determining disability, merely finding that plaintiff's impairment and activity capability were moderate, but precluded manual labor, we remand this case to the Commission for further findings with regard to plaintiff's earning capacity. Since the Commission has already found that plaintiff should no longer be exposed to cotton dust or other noxious substances, the Commission's inquiry should be directed to the plaintiff's ability to earn wages in any other employment, considering his age, education, experience, health and other characteristics which may render him suited or unsuited for employment. Based on these findings, the Commission will then conclude whether plaintiff's disability is partial or total.

Reversed and remanded.

ARNOLD and WELLS, JJ., concur.