Honeycutt v. Carolina Asbestos Co.

DbNNy, J. The principal question involved in this appeal is whether an employee who is disabled and incapacitated as the result of asbestosis from performing normal labor in the last occupation in which remunera-tively employed is entitled to compensation for total disability under the provisions of our Workmen’s Compensation Act. The appellants take the position that the plaintiff is not totally disabled within the meaning of the Workmen’s Compensation Act, since he is earning more wages as a policeman than he earned as an asbestos worker. They are relying on the case of Branham v. Panel Company, 223 N.C. 233, 25 S.E. 2d 865, and similar decisions, in support of their position. In the Branham case, the plaintiff was found to have 33% per cent or more general partial disability under G.S. 97-30, and had been tendered and had accepted employment suitable to his capacity as provided for in G.S. 97-32. Iiis employer did not reduce his wages. The Industrial Commission awarded the claimant compensation at the rate of 60 per cent of the difference between the wages he was earning before the accident and the wages he was able to earn after the accident “any time it is shown that the claimant is earning less due to his injury by accident within 300 weeks from the date of the accident.” Branham appealed from this award contending he was unable to earn his wages. Barnhill, J., in speaking for this Court, said: “. . . the capacity to earn wages, is the test of earning capacity, or, to state it differently, the diminution of the power or capacity to earn is the measure of compensability. It follows that, as the claimant is now earning wages in an amount equal to those received by him prior to his injury, he has failed to show any compen-sable injury or incapacity. However urgently he may insist that he is ‘not able to earn’ his wages, the fact remains that he is receiving now the same wages he earned before his injury. That fact cannot be overcome by any amount of argument. It stands as an unassailable answer to any suggestion that he has suffered any loss of wages within the meaning of the Act.” It must be kept in mind that the above ease involved a claim based on disability as defined in G.S. 97-2 (i). This section defines “disability” to mean “incapacity because of injury to earn the wages which the- employee was receiving at the time of injury in the same ox any other employment.” The general provisions of our Workmen’s Compensation Act were originally enacted for the purpose of providing compensation for industrial accidents only. The provisions with respect to occupational diseases were enacted later. And while occupational diseases, as well as *476 ordinary industrial accidents, are now recognized as a proper expense of industry, tbe manner in which disability is brought about by an occupational disease is so inherently different from an ordinary accident, it is sometimes difficult to administer the law with respect to such disease under machinery adopted for the purpose of administering claims growing out of ordinary accidents. Wisconsin Granite Co. v. Industrial Com., 208 Wis. 270, 242 N.W. 191. In such circumstances it becomes the duty of the courts to give effect to obvious legislative intent. Duncan v. Carpenter, 233 N.C. 422, 64 S.E. 2d 410. It is clear that “disability” resulting from asbestosis and silicosis, as defined in G.S. 97-54, is not synonymous with its meaning as defined in G.S: 97-2 (i). “The term ‘disablement’ as used in this article as applied to cases of asbestosis and silicosis means the event of becoming actually incapacitated, because of such occupational disease, from performing normal labor in the last occupation in which remuneratively employed; but in all other cases of occupational disease shall be equivalent to ‘disability’ as defined in section 97-2 paragraph (i).” G.S. 97-54. “The term ‘disability’ as used in this article means the slate of being incapacitated as the term is used in defining ‘disablement’ in section 97-51.” G.S. 97-55. In the enactment of the above definitions, we construe the legislative intent to be simply this: In all cases involving industrial accidents and occupational diseases, except asbestosis and silicosis, “disability” means the incapacity to earn wages which the employee was receiving at the time of his injury in the same or any other employment. But “disability” resulting from asbestosis or silicosis means the event of becoming actually incapacitated from performing normal labor in the last occupation in which remuneratively employed. The appellants concede the evidence in this case supports the finding of “disablement” within the meaning of G.S. 97-54. However, they contend that such “disablement,” when found, is subject to the same test with respect to earning capacity as that laid down in Dail v. Kellex Corp., 233 N.C. 446, 64 S.E. 2d 438; Branham v. Panel Company, supra; and Smith v. Swift & Co., 212 N.C. 608, 194 S.E. 106. In this we do not concur. We think that when an employee becomes incapacitated to work as the result of having developed asbestosis or silicosis, as defined in G.S. 97-54, it was the legislative intent that he should be compensated as for total disability in accord with the provisions of our Workmen’s Compensation Act. Otherwise, the provisions of G.S. 97-54 are meaningless. We think the distinction made by the Legislature between asbestosis and silicosis, and other occupational diseases,' is significant. An employee does not contract or develop asbestosis or silicosis in a few weeks or months. These diseases develop as the result of exposure for many years *477 to asbestos dust or dust of silica. Both diseases, according to the textbook writers, are incurable and usually result in total permanent disability. The average exposure to asbestos dust before the appearance of the disease is 13.5 years. Attorneys’ Textbook on Medicine (3rd Ed.) by Gray, page 1418. Therefore, it would seem that the victims of these incurable occupational diseases constitute a legitimate burden on the industries in which they were exposed to the hazards that produced their disablement. In our •opinion, such was the intent of the Legislature. No provision was made for their rehabilitation. Rehabilitation is available only to an employee found by the Industrial Commission to be affected by asbestosis or silicosis but not actually disabled thereby. G.S. 97-61. However, if in the process •of rehabilitation, or thereafter, an employee becomes disabled from asbestosis or silicosis as defined in G.S. 97-54, within two years of his last exposure to the hazards of asbestosis or silicosis, he would be entitled to ordinary compensation under the general provisions of our Workmen’s Compensation Act. G.S. 97-61; Young v. Whitehall Co., 229 N.C. 360, 49 S.E. 2d 797. The plaintiff should not be penalized because during the time the defendants contest his claim, he has chosen to make his “heart and nerve and sinew serve their turn long after they are gone,” rather than apply for public relief as so many are doing these days. The appellants also except to the finding of the Commission with respect to the “Average Weekly Wage” of the plaintiff. They take the position that the only wage earned by the plaintiff while employed by the ■defendant, Carolina Asbestos Company, was $36.80 a week as a twister hand. They contend that the Industrial Commission had no right, under the provisions of G.S. 97-2 (e), to take into consideration the $53.52 a week the plaintiff earned as a foreman in the plant for 37 weeks during the 52 weeks immediately preceding the date of his determined disability, •and while in the employment of Union Asbestos & Rubber Company. An examination of the record discloses that the Commission determined the average weekly wage of the plaintiff in the exact manner provided by statute, if the change in the ownership of the plant be disregarded. In our opinion, the formula used by the Commission for arriving at the average weekly wage of the plaintiff was not only permissible under the statute, but a proper one in this case. To have limited the .average weekly wage of the plaintiff to that earned during the last ten weeks of his employment, would have been unfair to the plaintiff under the facts and circumstances disclosed by the record in this case. And this is true whether the reduction in wages was the result of the plaintiff’s impaired physical ability or resulted from the change in ownership of the plant. *478 The judgment of tbe court below is, in all respects, Affirmed.