Peoples v. Cone Mills Corp.

EAGLES, Judge. I Defendant first argues that the Industrial Commission erred in finding and concluding that plaintiff was totally and permanently disabled when there is evidence that he was offered employment consistent with his medical limitations at no reduction in pay. Defendant argues that the evidence tends to show (1) that changes in the operation of the mill had measurably improved the dust content in the supply room air since plaintiff had last worked there in October of 1978, (2) that the job was totally sedentary and any requirement that plaintiff lift or carry anything had been removed, (3) that he could work only when he felt himself able to do so and only for so long as he was able, and (4) that he would be paid his former salary. a. Defendant’s argument centers on the statutory definition of disability: The term “disability” 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. G.S. 97-2(9). Many opinions from this Court and our Supreme Court have interpreted this provision in a manner similar to Dail v. Kellex Corp., 233 N.C. 446, 64 S.E. 2d 438 (1951). There, our Supreme Court said, The disability of an employee because of an injury is to be measured by his capacity or incapacity to earn the wages he was receiving at the time of the injury. Loss of earning capacity is the criterion. If there is no loss of earning capacity, there is no disability within the meaning of the act. (Citations omitted.) Id. at 448-49, 64 S.E. 2d at 440. See, e.g., Little v. Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978); Ashley v. Rent-a-Car Co., 271 N.C. 76, 155 S.E. 2d 755 (1967); Hall v. Thomason Chevrolet, 263 N.C. 569, 139 S.E. 2d 857 (1965); Anderson v. Motor Co., 233 N.C. 372, 64 S.E. 2d 265 (1951); Robinson v. J. P. Stevens, 57 N.C. App. 619, 292 S.E. 2d 144 (1982) (dealing specifically with disability resulting from byssinosis); Morgan v. Thomasville Furn. Industries, 2 N.C. App. 126, 162 S.E. 2d 619 (1968). See generally — 271 — 8 N.C. Index 3d, Master and Servant, § 69.1 (1977 and Supp. 1983). b. With this definition of disability in mind, the claimant in a Workers’ Compensation case has the burden of proving (1) that the claimed disability is the result of a compensable injury, and (2) that he or she was incapable after the injury of earning, in the same or any other employment, the same wage earned before the injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E. 2d 682 (1982); Loflin v. Loflin, 13 N.C. App. 574, 186 S.E. 2d 660, cert. denied, 281 N.C. 154, 187 S.E. 2d 585 (1972). In determining whether a claimant has met this burden before the Industrial Commission, our review is limited to the issues of (1) whether the Commission’s findings of fact are supported by any competent evidence and (2) whether those findings justify the legal conclusions and decision of the Commission. Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E. 2d 101 (1981). These standards of review apply even though there may be evidence which supports different findings or conclusions. Id., Inscoe v. Industries, Inc., 292 N.C. 210, 232 S.E. 2d 449 (1977). In this case, defendant makes no specific exception to the Commission’s findings and conclusions that plaintiff suffers from chronic obstructive pulmonary disease (COPD) with a byssinosis component. Under their general exception to the entry of the opinion and award, they do not argue that the Commission’s conclusions regarding plaintiffs byssinosis are not supported by the findings of fact. Byssinosis, as a component of COPD, is a compen-sable occupational disease. Rutledge v. Tultex, 308 N.C. 85, 301 S.E. 2d 359 (1983); G.S. 97-52, 97-53(13). There is likewise no dispute that plaintiff is unable to return to his old job as a floor supervisor. Assuming that plaintiffs byssinosis has made a return to his former job impossible, plaintiff still has the burden of proving that his byssinosis disables him from earning the same wage in any other employment. See Robinson v. J. P. Stevens, supra. Plaintiff must also prove the extent of that disability. Hilliard v. Apex, supra. c. The thrust of defendant’s argument is that the evidence shows that defendant is willing to pay plaintiff his old salary to — 272 — perform another job that is within his medical restrictions, however limiting they might be, and that he is therefore not disabled and not entitled to disability compensation within the meaning of the law. We disagree. Although the evidence is conflicting, there is sufficient competent evidence to support the Commission’s findings of fact regarding plaintiffs physical condition and his inability to perform the proffered supply room job. In his deposition, Dr. Bat-tigelli volunteered his opinion that “even a menial, minimal amount of activity indeed may be taxing Mr. Peoples’ tolerance to a significant extent.” Dr. Kilpatrick testified that physical exertion or exposure to any cotton dust would endanger Mr. Peoples’ health. The testimony of Melvin Witcher, who performed the hygiene survey, was that the supply room area, where Mr. Peoples would have worked, was “a very clean work area,” and that there was very little difference between the air quality in the supply room and “outside on a clear fall day” or in the conference room where his deposition was taken. There is no testimony in the record, however, that the amount of cotton dust in the supply room, by whatever source generated, was so insignificant as to make it an acceptable work environment for the plaintiff. The testimony indicates rather that Mr. Peoples’ byssinosis was such that it was capable of escalating unpredictably and regardless of whether he was at work, at home, or whether he was engaged in any physical activity. Dr. Kilpatrick testified on cross examination by defendant: In my opinion, in talking to and testing Mr. Peoples over a period of a little over a year now, I think, it would be better for him not to work in that I don’t know at which time his disease is going to exacerbate. II Defendant nevertheless contends that the supply room job is consistent with Mr. Peoples’ medical limitations in that he need not engage in any physical activity at all and that he would only be required to work when, if, and for as long as he felt able to do so. Theoretically, given our understanding of Mr. Peoples’ medical limitations, defendant is willing to pay him the same salary in the — 273 — supply room job that he was earning as a supervisor without regard for whether he comes to work, how long he stays, and how much he does while he is there. Defendant argues that, as long as plaintiff receives compensation for this “work,” he is not disabled for purposes of workers’ compensation law and cannot claim benefits for a disability. a. Defendant relies for this contention on the case of Branham v. Panel Co., 223 N.C. 233, 25 S.E. 2d 865 (1943). The claimant in Branham had injured his back so that he was unable, upon returning to work, to perform the full range of physical tasks he had performed prior to the injury. His employer offered him his old wage to work at a similar job that was within his ability to perform. The claimant filed a workers’ compensation claim. The Commission in Branham found that the claimant was entitled to compensation for the statutory period “ ‘less such time that he has been paid full wages.’ ” Id. at 235, 25 S.E. 2d at 867, quoting the opinion and award of the Industrial Commission. The Commission found that the claimant there had returned to work within the seven day waiting period and was “ ‘being paid full wages in lieu of compensation by his employer.’ ” Id. The Branham claimant was awarded medical expenses but the Commission withheld compensation for the injury provided that, within the period covered by the award, his wages did not fall below what he was being paid prior to his injury. On appeal by the claimant, the Superior Court held that no compensation was appropriate on the facts of the case. The claimant appealed to the Supreme Court. The Supreme Court held that the Superior Court had correctly ruled that plaintiff was not entitled to workers’ compensation as long as he was earning his old wage. Defendant here contends that Mr. Peoples’ situation is identical to that of the claimant in Branham and that Mr. Peoples, like the claimant in Branham, has taken the position that the “wages offered to him by Cone Mills are offered out of sympathy and that they do not reflect his actual earning capacity and should be discounted for purposes of determining disability.” The Branham court, relying on the legal meaning of disability set forth above, answered this argument as follows: — 274 — 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. . . . There is no “disability” if the employee is receiving the same wages in the same or any other employment. That “in the same” employment he is not required to perform all the physical work theretofore required of him can make no difference. Even so, if this be not “the same employment” then it clearly comes within the term “other employment.” Id. at 237, 25 S.E. 2d at 868. We note that this language was held to be dictum in Ashley v. Rent-a-Car Co., supra. While agreeing with the reasoning underlying the lower court decision in Branham, the Supreme Court did not unreservedly affirm it. Rather, it modified that decision of the Superior Court so that the conclusions and award of the Industrial Commission were “affirmed without qualification.” Branham v. Panel Co., supra, at 239, 25 S.E. 2d at 869. In so holding the Court reasoned: To protect the employee against the possibility that the employer might, at the expiration of 12 months [now 2 years for occupational diseases, G.S. 97-58], . . . discontinue the employment and thus defeat the rights of the employee, the commission, after finding the existence of the disability, directed that an award issue subject to specified limitations. The court below entered judgment striking this provision and affirming the judgment of the commission as thus modified. The exception to the judgment challenges the correctness of this ruling. It must be held for error. The commission adjudged the rights and liabilities of the parties. It then directed compensation at this statutory rate “at any time it is shown that the claimant is earning less,” etc. By this order, the commission, in effect, retained jurisdiction for future adjustments. In so doing, it did not exceed its authority. Id. at 238, 25 S.E. 2d at 868-69 (bracketed portion added). — 275 — b. While there are factual similarities, Branham is distinguishable in that it involved permanent partial disability while this case involves permanent total disability. Furthermore, Branham stands for a proposition that, if anything, weakens defendant’s argument rather than supports it. We read Branham to say that an employer may not avoid its liability under the workers’ compensation law by offering an injured employee a job at his old wage that is within his ability to perform. Defendant’s reliance on Branham is clearly misplaced. Here, plaintiff has satisfactorily established that he is totally and permanently disabled and that his disability is due to an occupational disease. He is therefore entitled to compensation for the disability as prescribed in G.S. 97-29. The fact that defendant has offered to pay plaintiff his full salary to work at a “job” that is allegedly consistent with his medical limitations does not negate either plaintiffs disability or the defendant employer’s obligation to compensate him for it. Ashley v. Rent-a-Car Co., supra. Defendant has attempted here to remove any practical difference between compensation for a disability and wages for work performed. Indeed, plaintiffs weekly salary is more than he stands to receive by way of compensation for his injury. But the difference between the two, as noted in Branham and Ashley, is more than semantic: certain legal rights attach to plaintiffs entitlement to workers’ compensation that do not attach to his status as an employee. Defendant’s argument in effect urges us to ignore these differences. This we cannot do and we accordingly find defendant’s first argument to be without merit. Ill Defendant next argues that the Commission erred in finding and concluding that plaintiffs refusal to take the supply room job was justified. This argument is largely predicated on the contention considered and rejected above: that the supply room job was consistent with plaintiffs medical limitations and he was therefore required to accept it. Having rejected that contention, we find no merit in defendant’s argument here. The only additional point urged by defendant is that plaintiffs continued refusal to accept the supply room position was unjustified because it was based on a fear that his condition would be aggravated as it was — 276 — when he attempted to work in October of 1978. Defendant contends that this fear no longer has a basis in fact because of improvements in the air quality in the supply room and changes in the job requirements. As noted above in Part I, the evidence shows clearly that Mr. Peoples’ byssinosis is capable of escalating under any circumstances. Moreover, his October 1978 attempt to work in the supply room for four half-days caused him to be hospitalized for two weeks and required him to rest practically the whole time away from work on those four days. Regardless of changes in conditions affecting the supply room job, Mr. Peoples’ fear that his condition will be aggravated is hardly baseless. There is medical testimony in the record that plaintiffs anxiety that something may happen to him on the job contributes to the aggravation of his condition. Defendant’s second argument is without merit. IV Defendant next argues that the Commission erred in awarding compensation for total permanent disability. In support of this argument, defendant contends that the evidence shows that plaintiff was only partially disabled from byssinosis. As we noted earlier, plaintiff has established that he is totally disabled from any work and that his disability is due to an occupational disease. Accordingly, we find no merit in this argument. V Finally, defendant argues that, if plaintiff is found entitled to compensation, the award should be adjusted to reflect the amount paid to him as wages. We agree. The findings of fact show that plaintiff was paid his full wage from 5 October 1978 through February 1979, even though he last worked on 5 October 1978. The Commission concluded that plaintiff was entitled to compensation beginning 5 October 1978. While plaintiff is entitled to the compensation awarded, the self-insured employer is entitled to a setoff against the amount it must pay plaintiff for wages paid to him after the effective date of the award. We therefore remand the cause to the Industrial Commission for further proceedings as necessary to determine the proper award. — 277 — Remanded. Judge Wells concurs. Judge Hedrick concurs in the result.