Lucas v. Burlington Industries

VAUGHN, Judge. Plaintiff first argues that the Commission erred in setting aside the hearing commissioner’s conclusion of law that plaintiff suffered from an occupational disease without reaching its own conclusion on the issue. We disagree. The dispositive question is whether plaintiff’s capacity to earn wages has been diminished. Mills v. J. P. Stevens & Co., 53 N.C. App. 341, 280 S.E. 2d 802 (1981). In the present cause, the Commission considered plaintiff’s physical symptoms and found that she may have had bronchitis in part due to cotton dust exposure. It also found, however, that plaintiff was not disabled. Since the absence of disability is a sufficient basis upon which to deny compensation, the Commission was not required to address the other elements necessary for a compensation award. Plaintiff argues that she is nevertheless entitled to a conclusion on the presence of an occupational disease in order to preserve her rights under G.S. 97-47. Plaintiff’s argument is without merit. Under G.S. 97-47, plaintiff may seek review of the Commission’s award upon a showing of a change in condition. A previous conclusion of occupational disease is not a prerequisite. Plaintiff’s assignment of error is, therefore, overruled. Plaintiff also argues that the Commission erred in concluding, as a matter of law, that plaintiff was not disabled as a result of exposure to conditions in her employment. We disagree. “Disability” under Chapter 97 does not mean physical impairment. Rather, the term signifies an impairment in the employee’s wage-earning capacity because of injury. G.S. 97-2(9). In determining disability, the Commission is not allowed to consider whether the average employee with plaintiff’s injury is capable of working *369 and earning wages. The question is whether this particular employee has such a capacity. Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978); Mabe v. Granite Corp., 15 N.C. App. 253, 189 S.E. 2d 804 (1972). On review, we are not triers of fact. Our responsibility is twofold. We must determine whether the Commission’s findings are supported by competent evidence and whether those findings reasonably lead to the legal conclusions. Buck v. Proctor & Gamble Co., 52 N.C. App. 88, 278 S.E. 2d 268 (1981). We conclude there is ample support for Finding No. 10. “[PJlaintiff has no disability due to causes and conditions arising out of plaintiff’s employment by the defendant-employer.” Dr. Herbert 0. Sieker, a pulmonary specialist, testified that fumes, dust, or chemicals would cause an inflammation of plaintiffs bronchial system and that plaintiff should avoid such environments. He also testified, however, that she could work at moderately strenuous activities in a clean environment: “She could work in an office that’s air-conditioned. She could work in a store that’s relatively clean. She could work in a home setting that’s clean.” The Workers’ Compensation Act does not insure an employee any particular employment. G.S. 97-2(9) speaks of incapacity to earn wages “in the same or any other employment.” (Emphasis added.) The present plaintiff’s situation is similar to that of the plaintiff in Sebastian v. Hair Styling, 40 N.C. App. 30, 251 S.E. 2d 872, cert. denied, 297 N.C. 301, 254 S.E. 2d 921 (1979) and Mills v. J. P. Stevens & Co., 53 N.C. App. 341, 280 S.E. 2d 802 (1981). In Sebastian, this Court affirmed the denial of compensation to a plaintiff who was no longer able to continue her job as a hair stylist. Although she had developed allergies to hair chemicals, the Commission found that she was capable of performing other gainful employment. In Mills, we affirmed the denial of compensation to a plaintiff with symptoms of mild obstructive lung disease who was advised not to return to his job at the textile mill but who could perform other work “except the most strenuous.” The finding of no disability, supported by the evidence, is binding on this Court. That finding justifies the Commission’s conclusion of law. The award is affirmed. *370 Affirmed. Chief Judge MORRIS and Judge Hedrick concur.