Donnell v. Cone Mills Corp. , 60 N.C. App. 338 ( 1983 )

299 S.E.2d 436 (1983)

Robert A. DONNELL, Employee,
v.
CONE MILLS CORPORATION, Employer, Self-Insurer.

No. 8210IC152.

Court of Appeals of North Carolina.

January 18, 1983.

Chambers, Ferguson, Watt, Wallas, Adkins & Fuller by J. Levonne Chambers, Charlotte, for plaintiff.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr. and Caroline Hudson, Greensboro, for defendant.

ARNOLD, Judge.

DEFENDANT'S APPEAL

The substantive issue on this appeal is whether plaintiff's earning capacity was reduced as a result of byssinosis contracted while working for the defendant. If so, then he is disabled under G.S. 97-2(9) and our case law. See, e.g., Wood v. Stevens & Co., 297 N.C. 636, 651, 256 S.E.2d 692, 701 (1979). Because byssinosis is an occupational disease under G.S. 97-53(13), it is compensable under G.S. 97-52.

The burden of proof of showing a disability is on the plaintiff. Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857 (1965). To conclude that plaintiff is disabled because of a lack of earning capacity, the Industrial Commission must find

(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). If the Commission makes these findings, and they are supported by competent evidence, they are conclusive on appeal even though there is evidence to support a contrary finding. Walston v. Burlington Industries, 304 N.C. 670, 677, 285 S.E.2d 822, 827 (1982). The conclusions of the Commission will not be disturbed if justified by the findings of fact. Inscoe v. Industries, Inc., 292 N.C. 210, 216, 232 S.E.2d 449, 452 (1977). To decide this case, we must determine if plaintiff has met the three prongs of the Hilliard test.

Plaintiff met the first element of the test by showing that he could not earn the same wages working for defendant after his disease as he earned before it. Consistent with his conclusion that plaintiff has byssinosis, Dr. Sieker stated that plaintiff should not work in a dusty environment, that he "would not tolerate strenuous or sustained exercise in a work environment," and that he had evidence of permanent impairment of his pulmonary functions.

Finding of fact number eight that plaintiff could not take another job with defendant because he could not pass a breathing test is supported by competent evidence. Both plaintiff and Sieker testified that he was not given a new job with defendant because of his breathing problems.

Although plaintiff did begin work at another job two months after his job with defendant ended, he cleared the second hurdle of Hilliard. The findings of Deputy Commissioner Denson as adopted by the Full Commission show that plaintiff's earning capacity in any other employment was reduced as a result of his disability.

Stipulation number four in the 31 October 1980 award states that plaintiff's average weekly wage was $194.19 when he worked for defendant. Finding of fact number eight lists the highest salary at his new job as $3.85 an hour for a 40-hour week. Although the award did not calculate his highest salary in the new job, it did conclude that plaintiff was disabled and calculated what amounts were due to him as a result of his disability.

Simple multiplication reveals that plaintiff's maximum weekly wage at the new job was $154.00. This is considerably less than what plaintiff earned while working for the defendant. Although comparing before and after earnings is not the method to show diminished earning capacity, Hill v. Dubose, 234 N.C. 446, 447-48, 67 S.E.2d 371, 372 (1951), we believe that it is a factor to be considered.

Given plaintiff's physical condition, the limits on his ability to work and his lack of training in any job except the textile industry, we hold that there was competent evidence before the Industrial Commission to find that plaintiff was disabled from byssinosis. This conclusion avoids the "needless and wasteful appellate review based upon allegations of inadequate and inappropriate findings and conclusions of law" that Justice Meyer decried in his separate opinion in Hilliard. See 305 N.C. at 599, 290 S.E.2d at 686. We refuse to require magic words in an award of the Industrial Commission before it will be affirmed.

An examination of the record reveals that plaintiff's diminished earning capacity is linked to his disease. Based on evidence discussed above, this third and final prong of the Hilliard test is present here.

Defendant cites Mills v. Stevens & Co., 53 N.C.App. 341, 280 S.E.2d 802, disc. rev. denied, 304 N.C. 196, 285 S.E.2d 100 (1981), in support of its position. The court in Mills affirmed the Industrial Commission's conclusion that the plaintiff was not disabled and did not have an occupational disease. The plaintiff in that case was unemployed for six months between his job with the defendant and a new job.

But Mills can be distinguished on its facts. The plaintiff there did not meet his burden of proof on the disability issue and the Commission held against him. The case sub judice is different because there is sufficient competent evidence in the record to support the Commission's findings for the plaintiff. For example, there was no finding of fact in Mills as to plaintiff's salary when he worked with the defendant, while that fact is stipulated here.

Our decision does not ignore that plaintiff's job with the defendant ended because the plant where he worked was closed. But we do not believe this to be dispositive on the disability issue. The crucial fact is that plaintiff's earning capacity was diminished because he developed the occupational disease of byssinosis during his employment with the defendant.

The Workers' Compensation statutes in North Carolina should be liberally construed to effect their purpose of compensating injured claimants and recovery should not be denied by a technical or narrow construction. Stevenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1972). We believe that this decision and its interpretation of "disability" under G.S. 97-2(9) is in accord with that general rule and does not enlarge the statute beyond its limits.

PLAINTIFF'S APPEAL

Plaintiff appealed that part of the Commission's award which struck the attorney's fee awarded under G.S. 97-88.1 and reduced the total fee to $1,500, which is to be deducted from his award. The Deputy Commissioner had awarded plaintiff's attorneys $1,226.96 under G.S. 97-88.1 because she found that the hearing was defended without reasonable ground, and an additional $1,200 fee to be deducted from the award.

G.S. 97-88.1, which was added by 1979 N.C. Sess. Laws Ch. 268, § 1, states:

If the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for defendant's attorney or plaintiff's attorney upon the party who has brought or defended them.

Under the statute, "The test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness." Sparks v. Restaurant, 55 N.C.App. 663, 665, 286 S.E.2d 575, 576 (1982).

Because the Commission struck the G.S. 97-88.1 award, it must have concluded that the defense was based on reasonable ground. Since our examination of the record leads us to a similar conclusion, we affirm the Commission's decision on this matter. See Robinson v. Stevens & Co., 57 N.C.App. 619, 627, 292 S.E.2d 144, 149 (1982).

We find no error in the Commission's reduction of plaintiff's total attorney's fees. This matter is subject to the approval of the Commission under G.S. 97-90(a) and will not be disturbed on appeal absent an abuse of that discretion.

The order of the Industrial Commission appealed from is

Affirmed.

JOHNSON and BRASWELL, JJ., concur.