Singleton v. DT Vance Mica Co.

69 S.E.2d 707 (1952) 235 N.C. 315

SINGLETON
v.
D. T. VANCE MICA CO.

No. 239.

Supreme Court of North Carolina.

March 26, 1952.

Uzzell & DuMont, Asheville, attorneys for defendants, appellants.

Charles Hughes, Newland, attorney for claimant, appellee.

DENNY, Justice.

This appeal challenges certain findings of fact made by the hearing Commissioner, which findings were upheld by the Full Commission and sustained by the trial judge on appeal to the Superior Court. The challenge to these findings presents the following questions: (1) Is there any competent evidence to support the finding that the claimant was first notified by competent medical authority on or about 5 March, 1949, that he had silicosis? (2) Is the finding that the claimant became disabled within the meaning of G.S. § 97-54, within two years of his last injurious exposure to the hazards of silicosis, as provided in G.S. § 97-58(a), supported by competent evidence? (3) May the Commission consider evidence other than expert medical testimony in finding that disablement of a claimant occurred within two year from date of last exposure to the hazards of silicosis?

There is no evidence on this record to the effect that any notice was given to the claimant advising him that he had silicosis prior to his receipt of a copy of the letter written by Dr. J. A. Byrnes, resident physician, Western North Carolina Sanatorium, Black Mountain, North Carolina, addressed to the Health Department, Newland, North Carolina, dated 21 February, 1949, which copy was forwarded to claimant on or about 5 March, 1949, and received by him in due course of mail. There is an indication that a copy of the letter written by the Director of the Division of Industrial Hygiene, addressed to Vance-Barrett, Inc., Plumtree, North Carolina, dated 17 August, 1942, was mailed to the claimant. The letter was introduced in evidence by the defendants and the following notation appears thereon: "cc: Mr. Sam L. Singleton, N. C. Industrial Commission, Compensation Rating & Inspection Bureau (2)." Conceding that the claimant received a copy of this letter, as the defendants contend, it should be noted that it is only stated in the letter that the examination reveals, "evidence of dust disease," and a mere suggestion, not a recommendation, that the claimant "be transferred to some other location in your organization where the dust hazard would be negligible." Advising an employee, who has been exposed to free silica dust, that his examination reveals "evidence of dust disease," is not sufficient to put him on notice that he has silicosis. Autrey v. Victor Mica Co., 234 N.C. 400, 67 S.E.2d 383.

Moreover, the information given in the above letter did not reveal the seriousness of the condition of Sam Singleton at that time. The true condition of the employee was not disclosed in the letter, but was revealed only to the Industrial Commission in a footnote added to a copy thereof. The record report of the examination of Sam Singleton on 10 August, 1942, upon which the information contained in the above letter purports to have been based, shows more than mere "evidence of dust disease." The record reveals that Mr. Singleton stated he had been "short of breath for 2 years," and the interpretation of the X-ray made at that time revealed, as compared with previous film of 18 November, 1936, "a slight increase in fibrosis with final diagnosis of moderately advanced silicosis." The Director of the Division of Industrial Hygiene evidently realized his letter did not disclose the true condition of the employee, otherwise it would not have been necessary to add the following statement on the copy to the Industrial Commission: "This man is 61 years old. He has a history of approximately 30 years in mica. He now has moderately advanced silicosis. Unless his present employer can transfer him to some suitable location, where his dust exposure will be negligible, we have little to suggest for him. We doubt the advisability of trying to rehabilitate him."

Furthermore, there is no evidence in the record showing that the diagnostic findings, resulting from the examination of the plaintiff on 18 November, 1936, which disclosed that he had "pneumoconiosis, second stage, without definite symptoms," or from his examination on 8 October, 1943, which revealed that he had "Silicosis II, progressing," were communicated to him or to his employer.

In our opinion the evidence does support the finding of the hearing Commissioner to the effect that the claimant was first notified by competent medical authority on or about 5 March, 1949, that he had silicosis.

On the second question, it is apparent from the claimant's testimony and the notice and claim filed by him, that he was under the impression that disablement meant inability to do work of any kind. It is clear he did not comprehend the distinction between disablement as defined in G.S. § 97-54, and ordinary disability as defined in G.S. § 97-2. This distinction was clearly pointed out in the case of Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797, 801, by Justice Ervin in speaking for the Court, in which he said: "It is to be noted that there is a radical difference between the criterion of disability in cases of asbestosis and silicosis and that of disability in cases of injuries and other occupational diseases. An employee is disabled by injury or an ordinary occupational disease within the purview of the Workmen's Compensation Act only if he suffers incapacity because of the injury or disease to earn the wages which he was receiving at the time of the injury or disease in the same or any other employment. G.S. § 97-2. But a worker is disabled in cases of asbestosis or silicosis if he is ``actually incapacitated, because of such occupational disease, from performing normal labor in the last occupation in which remuneratively employed'. G.S. § 97-54." Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410.

The question of claimant's disablement is, therefore, not whether he became incapacitated to do work of any kind within two years of his last exposure to the hazards of silicosis, but whether he became disabled or incapacitated within two years of his last exposure to free silica dust, "from performing normal labor in the last occupation in which remuneratively employed". G.S. § 97-54; Duncan v. Carpenter, supra.

The defendants contend there is no causal connection between the plaintiff's alleged disability which occurred after he left the employment of the defendant employer, and his silicotic condition which was contracted prior to November 1936. This contention is without merit. It is provided in G.S. § 97-57: "In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable." Bye v. Interstate Granite Co., 230 N.C. 334, 53 S.E.2d 274. And this section further provides, "when an employee has been exposed to the hazards of asbestosis or silicosis for as much as thirty working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious * * *." Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275.

There can be no serious question about the plaintiff having been exposed to free silica dust for more than 30 years. Neither can there be any doubt about his having been exposed to the hazards of silicosis for as much as thirty working days or parts thereof, within seven consecutive calendar months, immediately preceding 16 September, 1944, the date he left the employment of the defendant employer.

This plaintiff is clearly entitled to compensation if his disablement occurred within two years from the time he left the employment of David T. Vance, and such disablement resulted from silicosis. Duncan v. Carpenter, supra. The plaintiff testified that he became disabled to work about a year after he quit the mill and there is no evidence to the contrary. And the fact that he was not certain when he quit the mill is of no material importance on this record, since that date was definitely established by the employer. The evidence further supports the view that the plaintiff has been totally disabled, due to silicosis, at least since the early part of 1948. Prior thereto, according to his evidence, he could work only two or three hours at a time. His shortness of breath incapacitated him from working longer. There is no evidence of his having held a job of any kind since he left the mica mill. He testified: "I never done much after I quit the mill. I farmed two years after I quit."

We think the evidence was sufficient to support the finding that the claimant was disabled within the meaning of G.S. § 97-54, and that such disablement occurred within two years of his last exposure to the hazards of silicosis.

The conclusion we have reached in answer to the second question stated, presupposes an affirmative answer to the third question posed for decision.

In the case of Duncan v. Carpenter, supra [233 N.C. 422, 64 S.E.2d 414], it is said: "* * * that the finding of the competent medical authority must be to the effect that disablement occurred within two years from the last exposure in cases of asbestosis, silicosis and lead poisoning, and in claims involving other occupational diseases that disability occurred within one year thereof."

The defendants contend that in view of the above statement, where disablement occurs as defined in G.S. § 97-54, and notice of claim is filed in accord with the provisions contained in G.S. § 97-58(a), (b), and (c), as interpreted by this Court in that case the claimant must be advised by competent medical authority that he has silicosis and that such advice must be given within two years from the date of his last exposure. We decided this precise point to the contrary in Autrey v. Interstate Mica Co., supra. Moreover, it was not the intention of the Court to hold that no evidence would be admitted or considered in establishing disability within the meaning of G.S. § 96-54, except expert medical testimony. Examination of the record in that case, however, will reveal that the examinations of the claimant made prior to the time he quit work, did not disclose any definite evidence that he had developed silicosis. But the expert medical testimony did show conclusively that disability due to silicosis occurred within two years of his last exposure to the hazards of such disease.

Silicosis is an inflammatory disease of the lungs due to the inhalation of particles of silicon dioxide. It is incurable and is one of the most disabling occupational diseases because it makes the lungs susceptible to other infection, particularly tuberculosis. According to the textbook writers, it has been definitely determined that the removal of a man, who has silicosis, from silica exposure, does not stop the progress of the disease at once, but that fibrotic changes continue to develop for another one or two years. This is said to be due to the continuous chemical action of the silica that has been stored in the phagocytic cells and lymphatics. Gray: Attorneys' Textbook of Medicine (3rd ed.) Volume 2, Chapter 147, pp. 1583-1596; Reed and Harcourt: The Essentials of Occupational Diseases, pp. 161-174; Reed and Emerson: The Relation Between Injury and Disease, pp. 182-186; Young v. Whitehall Co., supra.

Gray, in his textbook cited above, on page 1591, says: "The changes within the lung upon inhalation of minute silica particles may best be demonstrated during life by the X-ray. As the ``scavenger cells' carry silica from the alveoli toward the lymphatic glands, damaged cells are gradually replaced with scar tissue. Fibrosis occurs. Deeper and deeper within the lung framework, this replacement goes on. The X-ray pictures the changes, and the findings serve to classify the degree of disease progress."

The defendants insist that the Commission's finding to the effect that claimant's disablement, within the meaning of G.S. § 97-54, occurred within two years of his last exposure, was based on the unsupported testimony of the claimant without any medical corroboration. We do not concur in this view.

The evidence discloses more than the testimony of the claimant that he was disabled to work within one year of the time he left the employment of the defendant employer. It includes the record of various medical examinations made prior to the time of disablement, as well as the interpretations of X-rays made in 1936, 1942, 1943, 1948, and 1949. The X-ray in 1936 revealed that the plaintiff had pneumoconiosis which term includes the manifestations of all dust inhalations whether the dust is injurious or harmless. Goldstein and Shabat: Medical Trial Technique, page 773. The interpretation of the X-rays made in 1942 and 1943 revealed that the plaintiff had "Silicosis II, progressing," for at last a year before he left the employment of the defendant employer. The interpretation of the X-rays made in 1948 and 1949 revealed total disability due to silicosis.

In our opinion, due to the nature of silicosis, it is essential to establish the presence of the disease by competent medical authority. But, where it has been established that a person who has been exposed to free silica dust has developed silicosis to the extent that it may be disabling, testimony other than that of a medical expert may be admitted and considered in determining when such person actually became disabled to work or disabled "from performing normal labor in the last occupation in which remuneratively employed". G.S. § 97-54. Certainly, a victim of silicosis is competent to testify to his lessened capacity to work, his shortness of breath, the effect that physical exertion has upon him—all of which are normal symptoms of silicosis.

When all the evidence on this record is considered, including the fact that the plaintiff has been totally disabled from silicosis since 1948, and enfeebled to the extent that he could not work more than two or three hours at a time for a considerable time prior thereto, we think such evidence, together with the inferences that may be fairly and reasonably drawn therefrom, the findings of the Commission and the conclusions of law drawn from such findings, must be upheld. Hildebrand v. McDowell Furniture Co., 212 N.C. 100, 193 S.E. 294; Lockey v. Cohen, Goldman & Co., 213 N.C. 356, 196 S.E. 342; Blassingame v. Southern Asbestos Co., 217 N.C. 223, 7 S.E.2d 478; McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d 873; Kearns v. Biltwell Chair & Furniture Co., 222 N.C. 438, 23 S.E.2d 310; Hegler v. Cannon Mills Co., 224 N.C. 669, 31 S.E.2d 918; Rewis v. New York Life Insurance Co., 226 N.C. 325, 38 S.E.2d 97; Riddick v. Richmond Cedar Works, 227 N.C. 647, 43 S.E.2d 850.

The judgment of the court below is

Affirmed.