Brinkley v. United Feldspar & Minerals Corp.

DeNNY, J. Before considering the principal question involved in this appeal, we shall dispose of certain preliminary questions that appear on the face of the record. In the first place, since the findings of fact and conclusions of law, based on the evidence adduced in the original hearing on 28 May 1951, were upheld by the Full Commission and affirmed in the Superior Court, and from which ruling in the Superior Court no appeal was taken and perfected, such findings of fact and conclusions of law will be considered as determinative of the plaintiff’s status with respect to disablement on that date. It follows, therefore, (1) that on 28 May 1951 the plaintiff was not disabled within the meaning of G.S. 97-54, (2) that he was not at that time actually incapacitated because of silicosis from performing normal labor in the last occupation in which remuneratively employed as a mill superintendent and machinery repairman, and (3) that the plaintiff possessed the capacity of body and mind to work with substantial regularity during the foreseeable future in some gainful occupation free from the hazards of silicosis. In view of the facts found by Chairman Huskins, as the hearing Commissioner, and the conclusions of law drawn by him, which were upheld as hereinabove pointed out, the plaintiff is not entitled to receive any compensation pursuant to the provisions of G.S. 97-29, unless he has shown that he became actually incapacitated because of silicosis between 28 May 1951 and 5 October 1952 from performing normal labor in the last occupation in which remuneratively employed between the above dates. G.S. 97-54; Huskins v. Feldspar Corp., 241 N.C. 128, 84 S.E. 2d 645; Duncan v. Carpenter, 233 N.C. 422, 64 S.E. 2d 410. It appears from the record that this case was tried upon the theory that the criterion for determining when one afflicted with silicosis is actually incapacitated depends upon whether or not he is actually incapacitated from performing normal labor in the last occupation in which remuneratively employed while exposed to the hazards of silicosis, and whether or not such incapacity occurred within two years of such last injurious exposure. This may be the correct theory in a case where the employee is so incapacitated when removed from the hazards of silicosis that he never had any remunerative employment during the next two years, as was the case in Singleton v. Mica Co., 235 N.C. 315, 69 S.E. 2d 707. However, the provisions of our compensation law with respect to silicosis and asbestosis contemplate that the State medical authorities, whose duty it is to examine employees in dusty trades, will not permit an employee to remain exposed to silica dust or asbestos dust until he becomes actually incapacitated within the meaning of G.S. 97-54. G.S. 97-61. [24] It must be kept in mind that a claim based on disability resulting from an ordinary industrial accident as defined in G.S. 97-2 (i) means "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” But where an employee is removed from silica dust, unless actually incapacitated at that time, it is contemplated that he will seek and obtain other remunerative employment. G.S. 97-61. Even so, if within two years from the time of his last exposure to silica dust he becomes actually incapacitated to perform normal labor in his last occupation in which remuneratively employed, he will be entitled to receive ordinary compensation under the general provisions of our Workmen’s Compensation Act. G.S. 97-29; G.S. 97-64; Young v. Whitehall Co., 229 N.C. 360, 49 S.E. 2d 797. On the other hand, “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. G.S. 97-54. The last occupation in which remuneratively employed may be one wholly separate and apart from the employment in which the employee was last exposed to the hazards of silicosis. Huskins v. Feldspar Corp., supra. The reason for allowing two years from the date of the last exposure to silica dust in which to determine actual disability from silicosis is due to the fact “that silicosis is a progressive disease, the lung changes continuing to develop for one or two years after removal of the worker from the silica hazard. Reed and Harcourt: The Essentials of Occupational Diseases, pages 161-174; Reed and Emerson: The Relation Between Injury and Disease, pages 182-186; Goldstein and Shabat: Medical Trial Technique, pages 773-776; Gray: Attorneys’ Textbook of Medicine (2d Ed.), pages 1060-1070.” Young v. Whitehall Co., supra. We note that the first hearing in this case was held before the decision was handed down in Honeycutt v. Asbestos Co., 235 N.C. 471, 70 S.E. 2d 426, and that the second hearing was held thereafter but before the decision in Huskins v. Feldspar Corp., supra. The decision in the Honeycutt case, as pointed out by Barnhill, C. J., in the Huskins case, seems to have been misconstrued. A careful review of the original record in the Honeycutt case reveals that Honeycutt was last exposed to asbestos dust on 27 July 1950. He was notified by competent medical authority that he had asbestosis on 5 August 1950. He filed claim for compensation on 15 November 1950. Claim for compensation was heard on 4 April 1951 and it was found as a fact, supported by competent evidence, that claimant was actually incapacitated on 27 July 1950; that he was not physically able to continue to perform his duties as a policeman without physical detri [25] ment to himself, and that there was no reasonable basis upon which to conclude that he possessed the actual or potential capacity of body or mind to work with substantial regularity during the foreseeable future in any gainful employment free from the hazards of asbestosis without injury and detriment to his physical condition. This was certainly tantamount to a finding that he was actually incapacitated because of asbestosis from performing normal labor in the last occupation in which he was remuneratively employed, to wit, that of policeman of the Town of Davidson. On the present record, there is no finding to the effect that the plaintiff became actually incapacitated by reason of silicosis from performing normal labor in the last occupation in which he was remuneratively employed prior to 5 October 1952. Moreover, if such a finding had been made, there is no evidence to support it. The defendants except to and assign as error the finding to the effect “that some time prior to 16 September 1952, the claimant became actually incapacitated by reason of silicosis from performing normal labor as plant superintendent, the last occupation in which he was remuneratively employed, while exposed to the hazards of silicosis.” It is clear that this finding is bottomed on a misconception of the law as to what is meant by the last occupation in which remuneratively employed. Under the facts in this case, the plaintiff was continuously employed in a gainful occupation free from the hazard of silica dust from 5 October 1950 until his retirement on 7 December 1955, which constituted the last occupation in which he was remuneratively employed. Neither was there a finding below to the effect that there is no reasonable basis upon which to conclude that the plaintiff possessed the actual or potential capacity of body or mind to work with substantial regularity during the foreseeable future in any gainful occupation free from the hazards of silicosis without injurious detriment to his physical condition. On the contrary, the medical testimony in this case reveals that from 10 July 1950 until the final examination made on 23 May 1953, which was more than two years after plaintiff’s last exposure to silica dust, the x-rays revealed no change from previous films. The appellee seriously contends that he was not really a bona fide employee of the defendant employer between 5 October 1950 and the date of his retirement on 7 December 1955, under the company’s retirement system or pension plan. We do not concur in this view. After the hearing on 28 May 1951, the plaintiff continued in the employment of the defendant employer, staying in the office or in and around the supply house, at the plant at Minpro, attending to such duties as were assigned to him. When the plant at Minpro burned in July or August 1951, the plaintiff was sent to Glendon in Moore County to rebuild a [26] plant that had burned. According to his testimony, he was charged with the responsibility of supervising the rebuilding of a plant to grind pyrophyllite, of buying material, laying out the work, installing the machinery, cleaning it up and getting the plant started. He worked continuously on this job until March 1952. Thereafter, until March 1953, he was engaged in looking after his employer’s property at Minpro and trying to dispose of certain equipment and material which his employer wanted him to sell. Furthermore, the plaintiff testified at the hearing on 5 May 1954 that he had not missed a day from his work since May 1951, “I have not missed a day from doing what I got paid for doing.” We appreciate the seriousness of silicosis. It is incurable. However, our compensation law provides only for compensation from silicosis where it is established that actual incapacity occurs within the meaning of G.S. 97-54 and within two years from the last exposure to silica dust. G.S. 97-58. The plaintiff has failed to establish these prerequisites to a recovery. Huskins v. Feldspar Corp., supra. The judgment of the court below is Reversed.