McCubbins v. Fieldcrest Mills, Inc.

PHILLIPS, Judge.

Defendant first contends that the record shows plaintiffs claim was not timely filed and that it was error for the Commission to vacate the Deputy Commissioner’s dismissal of the claim. This contention is without merit. G.S. 97-58(c) provides that “[t]he right to compensation for occupational disease shall be barred unless a claim be filed with the Industrial Commission within two years after death, disability, or disablement as the case may be.” Though the two year time limit for timely filing is a jurisdictional requisite, without which the Industrial Commission may not consider a workers’ compensation claim, the time does not begin to run against occupational disease claims until the employee is informed by competent medical authority of the nature and work-related cause of the disease. Taylor v. J. P. Stevens, 300 N.C. 94, 265 S.E. 2d 144 (1980). Since this is a jurisdictional question, the Commission’s findings are not conclusive, Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E. 2d 645 (1965), and after reviewing the entire record we must make our own findings thereon. Lucas v. L’il General Stores, 289 N.C. 212, 221 S.E. 2d 257 (1976).

Defendant argues, in substance, that plaintiffs own evidence shows that she was advised by Dr. Cayer nearly twenty years before this claim was filed that she had an occupational disease and that the only conclusion that can properly be drawn therefrom is that the Commission’s jurisdiction was not timely invoked. But nothing in the record suggests that Dr. Cayer diagnosed plaintiff as having chronic obstructive pulmonary disease, or any other lung disease, or that he told her she had such a disease or that it was caused by her work environment. The import of Dr. Cayer’s advice to plaintiff, as we read her testimony, was that she was allergic to cotton dust and should seek other employment. Defendant’s reliance on Dowdy v. Fieldcrest Mills, 308 N.C. 701, 304 S.E. 2d 215 (1983), reh. denied, --- N.C. ---, 311 S.E. 2d 590 (1984), is misplaced, as the plaintiff in that case was informed by a doctor more than two years before he filed his claim that he had a work-related lung disease and was completely disabled by it. Closer to the question presented by this appeal is Lawson v. Cone Mills, 68 N.C. App. 402, 315 S.E. 2d 103 (1984). In that case we found that the plaintiff did not know enough about his condition to trigger the running of the statutory period, even though he had been told by a doctor that he had a lung disease, since the evidence also showed that he was not told that his disease was caused by conditions on his job. So far as the record in this case shows it was not until March of 1982, several months after her claim was filed, that plaintiff was advised by a doctor that her lung disease was related to her work in defendant’s mill. Accordingly, we adopt the findings made by the Full Commission and reject defendant’s contention on this point.

Defendant’s other contentions are that the Commission erred in finding and concluding that plaintiff had a compensable occupational disease and that she was totally and permanently disabled. Since these are not jurisdictional questions and the Commission’s findings of fact thereon are supported by competent evidence and the findings support the conclusions of law, these contentions must be and are overruled also. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E. 2d 101 (1981). That plaintiff was at a greater risk than the public at large of contracting chronic obstructive pulmonary disease during the many years that she was exposed to cotton dust in defendant’s mill, the evidence leaves no room for doubt. Two physicians testified that plaintiff has chronic obstructive pulmonary disease with elements of bronchitis and bronchiectasis, and that while her disease was probably not caused by cotton dust, they both were of the opinion that the cotton dust contributed significantly to the development of the disease. This evidence is sufficient to support the finding that plaintiff had an occupational disease. Rutledge v. Tultex, 308 N.C. 85, 301 S.E. 2d 359 (1983). As to plaintiffs disability the Commission found that she was totally disabled due to her occupational disease as of 12 August 1974. “Disability” under the Workers’ Compensation Act is the incapacity of a worker, due to injury or disease covered by the Act, to earn the wage he was earning prior thereto. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E. 2d 682 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E. 2d 766 (1982). The record here supports the finding that plaintiff was so disabled, as it shows an uneducated, untrained 62 year old woman who worked in the mill as long as she could and then worked first as a beautician and then as a nurse’s aide until her breathing difficulties made it impossible for her to do any work that required physical activity or exertion. That plaintiff may be capable of doing sedentary work, as the doctors testified, does not establish that she is not disabled, as defendant contends. Disability under the Workers’ Compensation Act is not to be equated with physical infirmity. Other factors tending to show the unemployability of the worker, such as age, education and experience, can be considered, Little v. Anson County Schools Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978), and the Commission’s finding in this regard is based not only upon her incapacitating lung disease, but upon “her age, education, background and work experience,” which tend to show that she is not employable.

Affirmed.

Judges Webb and Johnson concur.