Hundley v. Fieldcrest Mills
292 S.E.2d 766
N.C. Ct. App.
1982
Check Treatment
VAUGHN, Judge.

Plaintiff argues that the Industrial Commission erred in failing to award him compensation for disability caused by an occupational lung disease. Although we conclude that the evidence does not show compensable disability, as a matter of law, we agree that the opinion and award must be vacated and remanded.

A review of an award of the Commission is limited to two questions of law. We must determine whether the Commission’s findings are supported by any competent evidence and whether those findings justify the legal conclusions and award. Morrison v. Burlington Industries, 301 N.C. 226, 271 S.E. 2d 364 (1980); Buck v. Proctor & Gamble Co., 52 N.C. App. 88, 278 S.E. 2d 268 (1981). If the findings are insufficient upon which to determine the rights of the parties, the Court may remand the proceeding to the Industrial Commission for further findings. Byers v. Highway Comm., 275 N.C. 229, 166 S.E. 2d 649 (1969).

The present plaintiff sought compensation for disability caused by an occupational disease. In Finding of Fact No. 10, the Commission found that plaintiff had sustained his burden of proof as to whether he suffered from an occupational disease. There is competent evidence to support that finding. The Commission *187 made no findings, however, concerning plaintiffs evidence of present disability. The only mention of disability is found in preliminary remarks of the opinion and award: “|l]t is the opinion of the Full Commission that while plaintiff has shown no compen-sable disability as a result of an occupational disease, that plaintiff has shown that he has received damage to his lungs as a result of his exposure to respirable cotton trash dust. . . .”

“Disability” is defined as the “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). In the recent decision of Hilliard v. Apex Cabinet Co., 305 N.C. ---, 290 S.E. 2d 682 (1982), the Supreme Court held that the determination of whether a disability exists is a conclusion of law which must be based upon findings of fact supported by competent evidence.

“We are of the opinion that in order to support a conclusion of disability, the Commission must find: (1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual’s incapacity to earn was caused by plaintiff’s injury.”

305 N.C. at ---, 290 S.E. 2d at 683.

Despite the lack of specific findings of fact as to any of these crucial questions, defendant argues that the present record should not be remanded. It contends that plaintiff offered no evidence of disability at the hearing upon which findings could be made. We disagree.

In worker compensation cases, the claimant normally has the burden of proving the existence of his disability and its degree. Hall v. Chevrolet Co., 263 N.C. 569, 575, 139 S.E. 2d 857, 861 (1965). It is insufficient for him to show that he has obtained no other employment since his retirement. He must prove that he is unable to earn wages in other employment. Hilliard v. Apex Cabinet Co., 305 N.C. at ---, 290 S.E. 2d at 684. Plaintiff may prove his wage-earning impairment by evidence of preexisting conditions such as his age, education and work experience which *188 are such that an injury causes him a greater degree of incapacity for work than the same injury would cause some other person. Little v. Food Service, 295 N.C. 527, 532, 246 S.E. 2d 743, 746 (1978).

In the present case, the only evidence presented were medical reports and plaintiff’s testimony. Dr. Kilpatrick, a pulmonary specialist, reported that plaintiff had approximately 20% permanent disability from his lung disease. He recommended that plaintiff continue to refrain from areas of high air pollution. He did not comment on other places of employment. Plaintiff’s testimony was that he quit work because he suffered from such shortness of breath that it became necessary for other people to help him with his tasks. He has not worked since he quit his job at the textile mill. He thinks he could be hired as a security guard at the mill but does not believe his lung power is sufficient to walk the rounds. At home, he is unable to perform even simple tasks because of his shortness of breath. At the time plaintiff retired, he was 62 years old, had a second grade education and could only read and write his name. His sole work experience was that of performing unskilled labor in the spinning room of defendant’s textile mill.

We hold that plaintiff presented evidence of an impairment of his wage-earning capacity because of an occupational disease. The Industrial Commission was free to accept or reject all or any part of that evidence. Anderson v. Motor Co., 233 N.C. 372, 376, 64 S.E. 2d 265, 268 (1951). To enable a review of its conclusion concerning disability, however, the Commission was required to make specific findings of fact as to plaintiff’s earning capacity. Hilliard v. Apex Cabinet Co., supra. The Commission failed to do so. We, therefore, remand the present record to the Industrial Commission for proceedings consistent with the opinion herein.

Vacated in part and remanded.

Judges MARTIN (Harry C.) and Hill concur.