*1 CASES ARGUED AND IN THE DETERMINED SUPREMECOURT
OF North Carolina
AT igh Rale INDUSTRIES, Employee, ELSIE T. MORRISON BURLINGTON Plaintiff COMPANY, Carrier, Employer, and LIBERTY MUTUAL INSURANCE Defendants
No. 114 (Filed 1981) 6 October —68, §§ Master partially occupational Servant 72 compensability disease — supported Where the evidence the Industrial Commission’s conclusion percent disability that claimant was disabled and of her was due to disability was due to other bronchitis, diabetes, including phlebitis, infirmities varicose veins and it was not for the error Industrial Commission award claimant percent partial disability. for a 55 occupa- rather than for total In cases, employee resulting tional disease disablement of occupa- from an employment, tional disease which arises out of and course G.S. 97-2(6), compensable proof 97-52and G.S. claimant has the burden of “to only disability, degree.” show not authority but also its The Commission does not have to award a claimant for total when to 50 origin claimant’s disablement and was not aggravated by any occupational or accelerated disease. dissenting. Justice Exum joins
Justice Carlton dissent. 7A-30(2) APPEAL pursuant to G.S. decision the North (1980), Court Appeals, Carolina 47 N.C. 266 S.E. 2d App. COURT IN THE SUPREME *2 Burlington Industries partial of the Industrial Commission an award reversing disability. total entry of an award for disability remanding for and re-argued Term 1980 and as No. Fall case was argued The Term 1981. Spring No. Morrison,
Claimant, her in employer to her certified Elsie with that she filed the Commission Notice of Accident Claim disease, . byssinosis . . to wit: occupational had “contracted an “perma- had resulted in to cotton dust” which by exposure caused nent, disability.” which after Commis- were held in the matter hearings Three to com- Morrison was entitled Brown concluded that Mrs. sioner disability 97-29. pursuant for total to G.S. pensation the Full which modified Defendants to Commission appealed Full findings and award. The Commission Brown’s Commissioner suffered “chronic although Mrs. Morrison found disease,” also suf- she occupational obstructive “con- and diabetes” and such “from varicose veins phlebitis, fered disability.” in The causing added factor her ditions constitute an “Due to the disease suffered then found: Commission infirmities, by bronchitis, physical including to her other plaintiff due diabetes, has plaintiff varicose veins and no phlebitis, can she earning capacity qualify disability Fifty-five of such is due to percent labor market. disability is of such due her disease her employment not related to infirmities upon concluded these defendant-employer.” Commission find- compen- Mrs. was entitled G.S. 97-30 to ings that Morrison and issued partial for a its award sation accordingly. vote, and, by a majority
Mrs. appealed, Morrison Court authority concluded the lacked to award Appeals Commission disability. rather than total partial claimant That court said:
As a of the Full Commission’s amendments to result order, Brown’s has found that Commissioner work, is disabled from compensable under by occupational part caused illnesses, other noncompensable law and and therefore plaintiff entitled compensation for total, partial, disability. The Commission erred in this conclusion .... If the worker’s to work incapacity is total and if the occasioned compensable injury disease, the worker’s to work cannot be appor- infirmities, tioned to other pre-existing or latent illnesses or nor may entitlement be diminished for such conditions. 55-56,
47 N.C. 266 S.E. 2d App. at 744. The Court Appeals *3 remanded the matter to the Industrial entry Commission for of an order consistent with opinion. its Chief Judge Morris dissented on ground that an compensated only should be for disability “resulting injury,” from the for not factors “totally . unrelated . . to employment.”
On defendant’s to appeal arguments this Court were first Court, heard on 13 October 1980. Thereafter the concluding “that the medical evidence before the Commission is sufficiently not plaintiff’s disability definite on the cause permit of to effective ap- review,” pellate remanded the case to the Commission with the suggestion that the more physicians adequately address “the in- terrelations, any, if between the cotton dust exposure and claim- bronchitis, ant’s other infirmities such as her upper respiratory infection, sinusitis, 226, 231, phlebitis, and diabetes.”1 N.C. 364, S.E. The Court ordered that new findings of fact be based made thereon. order, testimony to
Responding further was taken before Sieker, Commissioner Shuford from physicians Battigelli and Mabe, each whom of had treated and examined Mrs. Morrison and had at the hearings. testified initial After the Commis- rehearing, fact, again sion made of conclusions of law and an findings award evidence, clarify 1. to questions The three Court formulated to medical wit: (1) ie., disablement, any, plaintiffs percentage, incapacity what if to earn (2) disease; wages, percentage, any, if results from an whai plaintiff’s plain- disablement results from diseases infirmities unrelated to occupation aggravated plaintiffs occupa- tiffs which were accelerated (3) disease; any, percentage, plaintiffs tional if what disablement is due plaintiffs occupation which were not to unrelated to diseases or infirmities ac- by plaintiffs occupational aggravated at celerated or disease. (emphasis original). S.E. 2d at 367 Burlington Industries it, present- all evidence including evidence before on all the based found the The of this Court. the remand prior ed to this appeal: to pertinent which are following facts January examined plaintiff 5. 1977. On Dr. Sieker date, lung suffered obstructive plaintiff from chronic Sieker, disease, and, Dr. according was unable to engage to because of chronic obstructive gainful employment sixty fifty to opinion, percent disease. In Dr. Sieker’s resulting for from chronic work plaintiffs by exposure cotton lung disease obstructive at In- Burlington her employment dust dustries, the course of during fifty (forty percent) while the balance resulting work from chronic obstructive were to diseases and conditions which lung disease was due caused, by exposure to cotton or accelerated aggravated, Burlington at In- employment during dust course by Dr. was also examined Mario C. plaintiff dustries. opinion who is of the Battigelli, work, if at In Dr. Battigelli’s all. slightly incapacitated most, in- only twenty percent is at opinion, plaintiff, cot- plaintiffs exposure and that work capacitated course of her during dust ton *4 caused, or aggravated, have accelerated Industries could twenty in- percent much as all of her as none or as little work. capacity for disease, lung obstructive
6. In to her chronic addition from time to and has suffered time plaintiff suffers Such con- and diabetes. conditions phlebitis, varicose veins work, her causing added factor stitute an caused, by or accelerated aggravated, exposure and were not Bur- employment course of her at during to cotton dust lington Industries. disease, lung
7. from chronic obstructive Plaintiff suffers due, conditions characteristic of and to part, causes trade, occupation or particular employment her peculiar to her industry. lung That of disease which part the textile ordinary life is not an disease of her employment related to outside such public exposed of general equally employment. Burlington
8. Due to the chronic obstructive disease suffered infirmities, by due to her other in- plaintiff, bronchitis, diabetes, cluding varicose veins and phlebitis, earning any employment has no for which capacity qualify she can in the labor market. only partially
9. The claimant is incapacitated work caused, as a result of conditions which were aggravated, or by exposure accelerated to cotton dust course during the of her at employment Burlington Although plain- Industries. work, totally incapacitated fifty-five tiff is only percent caused, aggravated, by her or accelerated ex- dust posure cotton course her during employment at Burlington forty-five Industries. The remaining percent work plaintiffs incapacity for was not an by caused occu- disease, caused, and was not pational or acceler- aggravated, by ated disease or occupational exposure to cotton dust during employment of her Burlington course at Indus- tries. A
10. chart submitted wage defendant without hereby objection and made a plaintiffs the record plaintiffs weekly shows annual average wage to have been $119.77.
11. As a of the chronic result obstructive pulmonary dust, disease caused to cotton exposure plaintiff has work. partial incapacity for She has fifty- sustained a of wage-earning capacity ability five loss or earn by reason of her cotton dust wages exposure. Her average weekly has been wage-earning capacity by fifty-five reduced per $119.77 $65.87 or week. The balance loss wage was not and was caused, by an aggravated, accelerated to cotton dust exposure during the course of her Industries. *5 Commission, The an again, entered 55 percent partial award for disability. Hudson, Hassell, Jr., & by
Hassell Charles R. and Robin E. Hudson, Attorneys plaintiff appellee. Dennis, Conely C.
Teague, Campbell, by & Woodrow Teague III, W. George Attorneys Dennis appellants. for defendant 6 Burlington Industries Hunter, Smith,
Smith, Moore, Smith, McNeill J. by Schell & Cowan, Jr., Attorneys L. Young, and William Donald defend- ant appellants. Lewis, Ellis, P.A., M. At- Richard Taylor by &
Maupin, the United Association torneys National of Manufacturers America, amicus curiae. States of Johnson, Johnson, H. At- & Shearon by Gamble Samuel Industries, Carolina Associated North North Carolina torneys for Association, Plumbing- Association Merchants North Carolina Contractors, curiae. amicus Incorporated, Heating-Cooling HUSKINS, Justice. by this is as follows: When posed appeal
The sole question fact, by supported competent finds the Industrial Commission evidence, for work and 55 incapacitated that a claimant caused, percent aggravated of that accelerated of that in- remaining percent 45 caused, or aggravated for work was not accelerated capacity Commission, must Carolina, compensa- Act of North award Compensation Workers’ disability? 100 55 such percent Upon tion for fact, an award for 55 partial our Act mandates findings disability. rule jurisdiction, is that
Except as
questions
are
on
findings
appeal
of fact made
conclusive
so
evidence. This is
even
supported
competent
though
when
contrary
of fact.
finding
there is evidence to
support
226,
(1980);
Industries,
Dr. Sieker:
Q. disablement, is, any, percentage, plaintiffs if incapaci- What ty wages, to earn results from an disease? Well, my available, lady, opinion A. from the information is dis- sedentary types occupation, abled for all the most but so from except standpoint, job, or set at a desk sit at a she is My history opinion disabled. from the that 50 to 60 of that exposure. can be related to her cotton dust That’s a clinical history. judgment on information from based Q. any, plaintiffs if percentage, What or infirmities unrelated to or results disablement from diseases plaintiffs occupation which were accelerated by plaintiffs aggravated disease? testimony my Again history judgment A. clinical before was that that the cigarette smoking assigned as a related factor has to be etiologic lung to her total chronic obstructive contribution assignment percent. was 40 to 50 Q. any, plaintiffs percentge, What if disablement is due to diseases plaintiffs occupation infirmities unrelated to which were not ac- plaintiffs occupational aggravated celerated or disease? lung A. Her due to chronic obstructive disease that has factors, purposes etiologic so that for all intents and is a hun- several dred sedentary disability except work. There is no con- phlebitis tribution or her diabetes sinusitis or rhinitis you disability. having if look at the reasons for her her obstructive come back to Now chronic assign percentages, I disease and make me have assignments I the same I what did before and make did. *7 fact Mrs. infirmities other than “chronic obstruc- that Morrison’s cotton dust were part exposure” tive disease due in to Battigelli: Dr.
Q. disablement, is, any, percentage, plaintiffs to What earn if that wages, results from an disease? be, my again, I think I have A. And answer would what offered zero, beforehand; disability, something meaning no between no conse- twenty up quence, occupation, of a whole- no effect from her to man assessment. Q. any, plaintiffs percentage, What results from diseases if disablement plaintiffs occupation which or infirmities or to were accelerated unrelated by aggravated plaintiffs disease? any Namely, significant process no that I A. there was acceleration identify grounds justify up I on medical that could shore and could and gathered examining the evidence that I have buttress on the basis of patient I know of available data and information which and what anything by that has been accelerated ex- could lead me to believe posure negative is So answer to the to cotton acceleration. dust. patient “I aggravation, when tells me feel worse when For dust that; there,” report interpret accept I have it. I have to I to it cannot saying by aggravation qualify, I that that is restored fact. can meaningful and therefore is no clinical exposure, from there removal disorder, patient’s problems, course of that change in the natural you if wish. Q. any, plaintiffs percentage, if disablement due diseases or What infirmities unrelated celerated or plaintiffs occupation which were not ac- by plaintiffs occupational aggravated disease? downward, twenty my in the sense that it A. And answer is may responsible for all or of that. be Mabe: Dr.
Q. say you percentages give it cannot that were re- Is quested fair to by Supreme Court? Well, know, really, being Battigelli Dr. you think Dr. A. not and —I they’re pulmonary specialists, going if to take the other Sieker or something you know, really We do I’m not sure. not have —I — Battigelli’s probably Dr. letter the of- have Dr. Sieker’s letter they got respiratory I'm her file here. sure func- fice. I tion have it in don’t degree. respiratory get did know the We on her and tests time, capability, because we didn’t have the tests on her at function then it. in, certainly, expertise interpreting require would some still certainly up percentage to Dr. Bat- should left And I think the understand, both, Sieker, patient tigelli I have seen the Dr. who patient. and have been over the FALL TERM 5, 6, 8, in and of Findings themselves. See Fact disabling 11. We bound there findings though are these is evidence to contrary. Finding of Fact 6: Mrs. Morrison she suffers testified from diabetes and phlebitis. reports in evidence reflect all of the found Medical infirmities depression, hysterectomy. including proof more Commission and sinusitis and On a January private of total form filed 26 1976 with insurer Mrs. Morrison bronchitis, mellitus, disability” “origin listed the and nature of as “chronic diabetes fibrosis, early pulmonary phlebitis leg, emphysema.” of left placed employer standing ag- Mrs. Morrison was in a dust-free environment *8 breathing problems. position alleviate her gravated She left this because the phlebitis. her Dr. Mabe testified: Q. Well, is, assuming support finding, the that record would such a that job job that when she to was switched one another and that re- stand, quired her to and that she was able to tolerate that because you leg problem, agree of her would that in that circumstance that the problems leg taining would have to be factor considered additive in main- job disability? type that of and in her know, you complained, changing jobs, A. If she that in that she had one walking complained leg and she that more and attributed then, know, you phlebitis, to her this old that would have to be an ad- part. ditive Q. disability? particular ability In her —for that wages Or earn to in —her particular job? that particular job. A. In that
Q. So, then, be, your my question yes, to explana- answer would with the you gave? tion Well, it, see, know, reading you the thing A. in first I that I —in the where, testimony, previous you “it self-employed thing would have be a to know, words, work she could at will. In other she could not have satisfactory employee.” been a Now, here, lung
I meant the disease. on down “she later could not too,” thing type problem, leg work this of could not stand. She had a problem evidently. certainly which was at that time And I’d have to disability. stand that. Yes. That would be an added Again, only part supports this is of the evidence which the finding. See particular, testimony Battigelli supporting finding the of Dr. of fact 5. Finding Fact 7: exposure of Mrs. Morrison testified her to continuous to cotton April dust since chronic until finding she left work 1975. The that Mrs. Morrison’s “due, lung part” sup- obstructive disease is to disease is ported by testimony by claimant and the doctors about the extent and effect of her smoking in Battigelli fact April report and the she has bronchitis. Dr. noted in an present cyclic the “She convincing record: does not disorder which would allow the on the extent of opinions varied expressed
The doctors be- Mrs. There is a distinction Morrison. medical of disability. It to to up is the Commission legal tween medical Act. To legal disability ignore of the the degree determine of disabili- concepts and medical legal the distinction between function of the ultimate issue obscures ty confuses proper degree legal now We must determine fact finder. compensation purposes. for workers’ law, the statutes con- In field workers’ on what is legislature must follow the dictates our trol. We not compensable. that is sufficient sustain the evidence parties agree Mrs. an oc- that Morrison contracted finding the Commission’s Industries; by Burlington employed while cupational disease work; incapacitated she incapacity. her total disease caused diagnosis byssinosis. respiratory in view of her substantial chronic However conceivably may exposure I impairment suggest to lint deteriorate situation. additional activity patient to in a more sheltered environ- to relocate a similar Security justification enough apply for Social impossible patient If has ment. grounds on insuf- happy support I’ll her claim the severe venous and ficiency, disorder, op. hysterec- post depression, status chronic obstructive tomy.” *9 up steps Finding is to walk of Fact 8: Mrs. Morrison testified she unable testimony any anything All medical distance or lift without shortness of breath. the totally wages “except supports sedentary type finding the she is unable to earn the most that stated, Battigelli 4 “I of work.” In a letter written March 1976 Dr. April dyspnea light 8 have examined Mrs. exposure on 1975 on exertion and on for time, presented to dust and At that she severe obstructive fumes. disorder, by pronounced spirometry hypoxemia . . in ... . documented deficit pulmonary parameter and .... also had evidence decreased diffusion She gainful employment. shunt .... I conclude that she is disabled to She is Security . . I must to . . benefits . . under .... add that therefore entitled Social physical impairment, she has ficiency sources of inclusive of severe venous insuf- additional extremities, enlargement, ventricular of lower diabetes and left borderline dyspnea all associated to on exertion.” finding testimony. supported Finding of Fact 9: This is the doctors’ doc- any testimony finding support from to tors’ The range. would 0% 60% disease. finding jurisdiction its was within fact when it found this within compensation Finding dispute figures. is of Fact 10: There no about the findings Finding through support of Fact 11: The evidence cited under finding as ultimate of fact. an Defendants contend “resulting that the from injury” the language both G.S. 97-29 and 97-30means that she is entitled to the compensation only to extent occupational disease’s con- o/the Hence, tribution. she is entitled partial disability, disability, not total because the occupational disease 97-30, only part disability. Therefore G.S. not G.S. 97-29, the governs paid should this case. Those statutes in read pertinent part as follows: — 97-29. rates Compensation total Ex- incapacity. § as
cept provided, hereinafter otherwise where total, for work resulting injury shall employer from ... . pay — 97-30. Except Partial incapacity. provid- otherwise § 97-31, ed in G.S. where the work resulting from partial, employer shall .... pay (Emphasis added.) our Mrs. Morrison contends that Compensation Workers’ Act permits no such award total in- apportionment case of capacity. She if argues acting together non-job-related infirmities causes total disability. is entitled compensation for The North Workers’ Compensation Carolina Act was enacted not, be, in 1929. It is was never general intended to acci- dent and health insurance act. “We should not overstep intent, legislative judicial bounds of and make our legislation Act an Compensation Accident Health Insurance Act.” Inc., 399, 403, Lewter v. 240 N.C. S.E. Enterprises, (1954); Foundry Conrad 198 N.C. S.E. 266 97-2(6) “only mean “injury” injury by G.S. defines accident out of and in course of the arising employment, and shall form, naturally it except include a disease where results unavoidably the accident.” 97-2(9) “disability” “incapacity G.S. defines the term to mean *10 wages of earn the injury because to the which was any the injury employ- at the of same or other receiving time (ex- all ment.” Disablement from diseases resulting occupational silicosis) ‘disability’ as cept “equivalent and is to asbestosis 97-2(9).”G.S. 97-54. defined in G.S. 12 v. the Act provi-
When it became that should include a apparent sion for of to disabled payment employees of human the beings diseases or abnormal conditions causative nature, the legislature which was origin occupational 97-52 in 1935 what is now codified as G.S. and -53. adopted origin The words out of’ refer to the or cause of the “arising Bartlett v. Duke Univer- injury occupational accidental or disease. (1973); 230, Nicholson, 284 S.E. 2d 193 v. N.C. 200 Robbins sity, Club, 234, (1972); S.E. Twin 260 Taylor City 281 N.C. 2d 350 v. (1963); 435, 132 S.E. Iron and Metal Guest v. N.C. Charlotte, (1955); 85 S.E. 2d v. 234 N.C. Duncan (1951); 97-52; 97-54. S.E. 2d G.S. G.S. time, and cir- place refer to the course of’ The words “in the accident, disablement injury by or the cumstances under disease, v. Duke Bartlett occurred. resulting occupational from an Nicholson, supra. Robbins University, supra; inquiry that the demonstrate legal principles The foregoing extent, whether, is in- plaintiff to what is determine here to disease obstructive of her chronic that capacitated earn, em- same or in the occupation she became at the time receiving wages she ployment, disability resulting overwhelmingly apparent It disabled. from an oc- resulting disablement injury, or an accidental from be, and in arise out of may must the case as cupational i.e., causal some there must be employment, course the re- before employment and the between relation out of” the said to “arise can be disability or disablement sulting employment.
What, then, compensa- show be must entitled resulting occupational tion for disablement (1) 97-53(13)?The must establish covered answer is: She G.S. disease encom- disablement results from 97-53(13),i.e., an due to passed by occupational disease causes G.S. peculiar to a par- and conditions which are characteristic trade, distinguished ticular from an occupation ordinary general to which the ex- public equally disease of life (2) the posed outside extent employment; disease, i.e., whether disablement said resulting from If she is disabled as result disease. partially *11 1981 13 FALL TERM total, resulting disablement from the disease is the occupational claimant is entitled to compensation provided as in G.S. 97-29 for disability. If resulting the disablement occupational the disease is the partial, claimant is entitled to pro- in vided G.S. 97-30 for partial disability. compensable To be Act, the Compensation Workers’ an from ac- injury must result cident arising employment. out and in the course of the G.S. 97-2(6).Claimant has the of showing injury. Henry burden such v. Co., means, cases, Leather That in supra. occupational disease that disablement of an employee resulting from an occupational disease which in arises out of and the course employment, 97-2(6), 97-52 G.S. is compensable G.S. and claimant has the disability, not . . proof burden “to show . but its also 569, 575, 857, degree.” Hall v. Chevrolet 263 S.E. N.C. 139 (1965). 861 the statutory applied When the law of North Carolina is to case, in inescapable evidence the conclusion is that claimant’s ex- disablement from the does resulting occupational disease not 50 to 60 remaining ceed and that veins, bronchitis, phlebitis, results from varicose diabetes, not and that of her chronic caused, way occupation. ag- These ailments were no In- gravated occupational accelerated disease. The found, overwhelming so dustrial Commission evidence to law findings. did what the support precisely authority do. legal of this State it to It had no to award required for total to 50 per- claimant when of her origin cent disablement was not aggravated by any or accelerated disease.
To be
compensable,
earn wages, resulting
injury by
either from an
arising
accident
out
of and
the course
or from occupational
spring
must
from the
“This rule
employment.
very
of causal relation is the
anchor
sheet
of the Workmen’s Compensation
It has
kept
Act.
within
Act
the limits of its intended
scope,
providing
—that
compensation benefits for industrial
than
injuries, rather
branch-
into
ing out
the field of general health insurance benefits.” Dun-
Charlotte,
86, 91,
can
v.
66 S.E. 2d
When the
Assembly, by
General
the amendment
ex-
scope
tended
a specified
Act
include
list of occupa-
Burlington Industries
*12
par-
incidents of
and natural
are the usual
which
tional diseases
“in nowise relaxed
the amendment
employment,
types
ticular
of causal relation
requires proof
principle
fundamental
the
nonetheless,
adop-
the
And
since
injury
employment.
between
amendment,
occupational
for an
disease
may an award
tion
to
was incident
it
shown that the disease
unless
be
be sanctioned
in which
workman
particular
or the result of the
91,
Charlotte,
S.E.
evidence and are only 55 of Mrs. necessary relationship causal inability to work and earn This was the extent wages. Morrison’s in- disease. The resulting of her resulting for work from the disease capacity pursuant should be awarded partial therefore 45 remaining is not to G.S. 97-30. The obligation of her of nor responsibility Workers’ Act which Compensation compels our employer under of its own Barber v. industry wreckage.” Minges, “to take care 213, 216, 25 S.E. 2d Mrs. Morrison’s N.C. dust exposure chronic obstructive due cotton “industry’s phlebitis, Neither is her varicose wreckage.” is not veins nor diabetes.3 infirmities which are of benefits exist those 3. Alternate sources together may employee employment. employer An or or both obtain
unrelated programs long- to cover these illnesses private short-term insurance The law we today apply departs from neither nor statute precedent. case Anderson Motor S.E. 2d (1951), first adopted for North Carolina principle of com- pensation for aggravation and of a acceleration infir- pre-existing mity. It mandates a causal injury connection between the Anderson, disease and the employment. In we held:
While State, there seems be no case specific on the point in jurisdictions
courts in other hold with virtual uniformi- ty when afflicted with a pre-existing infirmity disease or personal suffers a by accident aris- ing out of and in the course of employment, his in- such jury materially accelerates or aggravates the pre-existing *13 infirmity disease or and proximately thus contributes the death or disability employee, the the injury is compen- sable, even it not though would have caused death or disabili- ty to a normal person. 374, Anderson,
more
The employee’s physician was of the opinion
disability”
that he
“permanent physical
had a
percent
of 10
disability
his
that
“could be the result
injury
of the last
received
job]
the
or could have arisen before
time.” The Commis-
[on
that
caused, aggravated
by occupational
not
or accelerated
conditions. Such
are
terms
Also,
group
policies.
standard in
available under
life and accident insurance
are
benefits
Security System.
application
Social
the
The record indicates
Security
Mrs. Morrison for benefits from both of these sources. The Social
disabili
ty
substantially
benefits
Mrs.
which
Morrison receives would be
reduced
a
compensation
Security
requires
workers’
The Social
award.
Act
an offset of Social
Security
compensation
benefits
workers’
benefits received. 42
424a
U.S.C. §
(1976),
Security
20
404-408.
C.F.R.
A reduction in Mrs. Morrison’s Social
benefits
§§
fully
age
partially
must be made
periodic
month before she attains
62 to
or
offset
compensation
workers’
benefit received for the same month. The amount
Security
plus
of the
workers’
is the
total
the
reduction
amount
Social
benefits
higher
“average
of two
cur
exceeds
limits:
Security
family’s
earning”
purposes,
rent
Social
or the
defined for
Social
McCormick,
Security
(1978).
Security
benefits. See
Social
and Procedures
Claims
§
Security
applies
The offset
even where the benefits under Social
Matthews,
paid
workers’
are
for different disabilities. Kananen v.
(8th
den.,
Cir.),
F.
434 U.S.
2d
2d 743
all or
G.S. 97-29 is not whether
The relevant
inquiry
capable
are
degree
persons
plaintiff’s
some
has
herself
wages,
but whether
working
earning
*14
64
In Anderson v. Motor
N.C.
capacity.
such
Court,
Ervin,
(1951),
writing for the
noted:
Justice
S.E. 2d 265
in
point
be no
on the
specific
case
“While there seems
State,
virtual uniformi-
hold with
jurisdictions
courts in other
pre-existing
with a
ty
employee
that when an
afflicted
injury
infirmity
personal
by
or
suffers a
accident aris-
disease
in-
of and in
of his
and such
ing
employment,
out
the course
pre-existing
aggravates
accelerates or
materially
jury
contributes to the
infirmity and thus proximately
or
injury
compen-
disability
employee,
death or
sable,
or
not have caused death
dis-
it would
though
even
Similarly, if
pre-existing
ability
person.”
to a normal
and work ex-
age, education
employee’s
as an
conditions such
injury
degree
causes him greater
that an
perience are such
injury would cause
the same
incapacity
for work than
compensated for
must be
employee
person,
some other
suffers,
not for the degree
she
and
which he or
FALL TERM
Burlington Industries
suffered
someone
disability which would be
who is
experience
younger
or work
education
superior
in better health.
531-32,
In
the evidence shows
obese,
woman,
fell in a sitting
over a
tripped
mop
uneducated
doctor rated
injury
spinal
to her
cord. One
position, resulting
disability
opinion
at 50
and was of the
percent
her
former
wholly incapable
resuming
her
she
suf-
A
was of the
that she had
opinion
a laborer.
second doctor
area;
that she had a
to her
cord
the neck
injury
spinal
fered
in her neck which was activated
arthritic condition
pre-existing
fall;
and that she had suffered a
system.
medical
further indicated
neurological
evidence
to Mrs. Little’s
cord had resulted
spinal
“in
numbness or loss of sen-
weakness
all of her extremities” and
body”;
that she had suffered diminished
“throughout
sation
of them.
mobility
difficulty
objects
feeling
and had
recognizing
suf-
found that Mrs. Little had
The Industrial Commission
.
disability of 45
.
. loss of use
“a permanent partial
fered
135 weeks pursuant
for
of her back”
awarded
97-31(23).
reversed,
We
affirmed.
Appeals
to G.S.
The Court
not limit
to an award
that the Commission could
holding
97-31(23)
caused some
apparently
because the fall had
under G.S.
legs
possibly
loss of
arms and both
use
both
unspecified
other sections of the
compensable under
disabling impairments
saying:
injured
We
further
“The
proceedings
Act.
remanded for
injuries
all
encompasses
is entitled to an award
It would serve no many confusing conflicting and decisions discussion because, they for the most are based on jurisdictions part, thereof different from our own. interpretations quite statutes and say by not the law It suffices to that we are bound of other jurisdictions, helpful states. “The decisions from other while statute, of our are not construing provisions controlling; ours, upon neither is the a statute similar to interpretation placed on this binding Stanley Hyman-Michaels Court.” 257, 266, 22 S.E. The result we reach is consist- not, our Workers’ Act principle Compensation ent be, in- general and was never intended to a accident and health intent we legislative surance law. Such was and should not, by our law a judicial legislation, convert into system health compulsory general insurance. (1) summary: In takes the employer employee an he finds (2) infirmities pre-existing
her with all her and weaknesses. When non-job-related a condition is pre-existing, nondisabling, ag- by or an accidental out gravated injury arising accelerated of and by in the course of or an disease so that results, disability then the must employer compensate the for the entire even it would resulting though (3) not have hand, a person disabled normal to that extent. On the other non-job-related when a pre-existing, nondisabling, infirmity eventually incapacity causes an for work without by by or acceleration of it accident aggravation compensable resulting incapacity so caused is not (4) When a claimant becomes compensable. incapacitated work caused, of that accelerated or aggravated by an and the remainder of that occupational disease caused, for work is not accelerated or aggravated occupa- disease, the Compensation tional Workers’ Act of North Carolina requires compensation caused, for that portion accelerated or aggravated occupational disease. Act, Compensation Our Workers’ as enacted Court, legislature interpreted applied will not recovery by disability. Mrs. Morrison for support It is our *16 FALL TERM 1981 duty the Act as it exists. This is not interpret Court Morrison, to the Mrs. philosophically opposed sought result recovery but of the law to such is the expansion permit legislature’s prerogative, not ours.
For the reasons stated the decision of the Appeals Court reversed. The case is to that court for further remand remanded to the Industrial for reinstatement of its award based on its and conclusions our remand order dated findings following in 301 271 S.E. appearing October remanded.
Reversed and dissenting.
Justice EXUM majority that the has misunderstood the evidence Believing appropriate legal principles and refused to recognize case, I govern Appeals’ majority dissent. The Court I to affirm its decision that Mrs. reached the result and vote right Morrison to an award for total work. is entitled understood, evidence, shows that Mrs. although properly infirmities from several unrelatéd Morrison suffered her chronic obstructive job1 lung the onset of disease before (hereinafter disease”), standing none of these infirmities “lung She continued to work working. alone had ever kept to such lung progressed infirmities until her despite these work. it was no able to longer a severe state that because of she work, therefore, entirely by her was caused Her lung disease.2 “phlebitis, varicose Finding 6 to be 1. These were found the Commission “bronchitis, veins phlebitis, varicose Finding
veins 8 to be and diabetes” and diabetes.” hearings remand after our physicians testified at the conducted 2. All so three disabled, Morrison, testified, my opinion, “Mrs. Dr. Sieker order: sedentary type . . . The chronic of work. physically the most disabled for all but diabetes, lady varicose Her lung reason this is disabled. disease is the obstructive sinusitis, rhinitis, any way.” veins, would disable her none of these plaintiffs infirmities other Battigelli pulmonary Dr. said that than her chronic did, however, disability. He “possibly” to her have contributed disease could Burlington Industries our re- hearing adduced at the There is some evidence before *17 was for work incapacity Mrs. Morrison’s mand order that between, of, lung her or interaction effects to the combined due the onset pre-existed infirmities and those physical however, shows, that before the All the evidence of this disease. infirmities had caused pre-existing disease those lung onset of her work whatever. incapacity no for
There is no that these infirmities evidence con- work, tributed to her even combination with her the extent of 45 of her lung percent incapacity. to No physician lay witness so testified. The evidence of a 45 dichotomy testimony comes from the Dr. percent-55 percent Dr. Sieker. Sieker testified that there were “two identifiable etiologic factors” which contributed to Mrs. Morrison’s chronic obstructive disease. “One is cotton dust the other lung exposure, said, cigarette arbitrary is her He a somewhat consumption.” “[I]n way but I judgment with clinical factors assigned etiologic about 50 —50 percent percent to for the cotton dust exposure any to 50 for the percent cigarette smoking attendant ... problems present with that. At time there is no laboratory would do this. This [assignment of test that type on the etiological judgment, had to be based one’s judg- factors] ment these on the agents respiratory system. of the effects of . . will smoking . In make general cigarette individual more and one would susceptible pollutant expect to other air that cigarette smoking exposure and cotton dust would have the synergistic effect.” testimony Dr. majority sup- claims additional Sieker 5.
ports Finding Commission’s The Commission found that: concede, all, on “that to the extent cross-examination disabled at [Mrs. Morrison] exclusively lung exposure it is cotton dust as a result of her disease and to a total percent.” of 20 Dr. Mabe testified that “the reason medical [Mrs. Morrison’s] pulmonary phlebitis. . . . her disease ... it was not influenced her . . . She had phlebitis. got problems had a She it. She had some more that over it. But thing. type would have been a short term She could have on with the worked phlebitis.” Finding plaintiff Indeed the 5 states: “Dr. Sieker Commission’s examined date, January lung 1977. from chronic On that suffered obstructive disease, and, Sieker, according engage gainful employment Dr. was unable to because chronic obstructive disease." FALL TERM Burlington “In Dr. opinion, fifty sixty Sieker’s percent percent plaintiff’s for work resulting chronic obstruc- tive lung disease was caused to cotton exposure dust dur- Industries, the course of ing employment at Burlington (forty fifty while the balance percent) of her in- capacity resulting work from chronic obstructive lung disease was due to diseases and conditions which were not caused, aggravated, exposure accelerated to cotton dust during the course of In- dustries.”
It is true Dr. Sieker stated in one portion testimony of his it was his judgment clinical “that 50 to 60 of that clear, disability can be related to her cotton exposure.” dust It is *18 however, context, when testimony this bit of is read that Dr. disease, Sieker meant 50 to 60 percent of Mrs. Morrison’s lung not her total incapacity, is attributable to cotton dust exposure and 40 to 50 percent Similarly, to cigarette smoking. testimony no by any lay other physician supports witness the finding that 45 percent of Mrs. incapacity Morrison’s total for work was caused by her physical infirmities from or apart together with her lung disease. point worthy This of repetition because it is crucial for analysis of Dr. proper this case. Sieker testified that all Mrs. Morrison’s incapacity work caused her by lung disease. It for disease, was the not her lung incapacity, that had two causes. These causes were her exposure to cotton dust and cigarette and their contribution smoking, proportionate to her disease lung (1) dust, were: (2) 50-60percent caused her exposure cotton 40-50 percent caused her cigarette smoking. legal issue in this case is obfuscated because of ambigui-
ty in the Commission’s This findings. ambiguity persists majority opinion. interpretation One of both the findings and the majority opinion is that Mrs. Morrison’s physical infirmities other have, than lung her disease when combined or interacting after disease, with her lung contributed to the extent of 45 percent to work, her for lung and the disease itself to the extent of 55 percent.3 6 and 8 Findings seem to establish dichotomy 3. I majority do not say understand either the or the Commission to these physical standing infirmities produced any alone had or incapaci- would have is, noted, ty already for work. There as I have support no evidence to this notion of the case. in- and her other physical on one hand lung disease
between firmities on the other: lung
“6. to her chronic obstructive In addition time has time to suffers and suffered plaintiff con- Such conditions varicose veins and diabetes. phlebitis, work, her causing factor stitute added caused, by exposure were or accelerated aggravated, Bur- during employment cotton the course of dust lington Industries. lung “8. chronic disease Due to the obstructive suffered infirmities, in- and due to her other
by plaintiff, diabetes, bronchitis, varicose veins and cluding phlebitis, earning no capacity has she in the labor market.” qualify can only Morrison’s is that of Mrs. Another interpretation to cotton dust and 45 exposure per- caused lung even cigarette smoking.4 though cent Therefore incapacitated has Mrs. Morrison to disease work, if she were 55 percent she is an award as entitled to on the being based extent to which incapacitated, percentage *19 entirely Although what 4. clear this is the and it is not I assume majority they part” lung refer to of Mrs. Morrison’s the mean when “that disease evidence, employment. nothing is not I else in the related to her find cigarette part” smoking, which “that of Mrs. than the could constitute Morrison’s employment. only possible lung disease unrelated to her candidate would be Commission,however, the Mrs. Morrison’s bronchitis. The did find bronchitis to component lung It be a the chronic obstructive disease. found it to one of Mrs. physical lung Finding Morrison’s jority infirmities other than her disease. See 8. The ma- statutory says, treats when it “When the so the bronchitis law of North case, applied inescapable is to the evidence this conclusion is that Carolina occupational resulting from claimant’s disablement disease does not exceed 50 remaining disability percent percent of her to 60 and that the to 50 results bronchitis, veins, diabetes, phlebitis, lung varicose and of her chronic by occupation.” component if bronchitis disease not caused her her Even were a disease, lung her award should not be diminished because of it. Because it clearly aggravated pre-existing occupational then be a would posure condition her ex- “aggravation” recognized by principle majority. cotton dust under the to, the cotton dust exposure contributed or was an etiological fac- in, tor lung of her disease.5 development If the first interpretation Commission’s finding decision, basis for its award majority’s and the then both are in because, shown, error I simply already have there is no evidence to support interpretation. this Even if there were such evidence, then under either interpretation Mrs. Morrison is legal- ly entitled to an award her for compensating the total incapacity for work from actually which she suffers. The fundamental legal first, errors committed majority are: position its unless occupational medically an disease aggravates or ac- condition, celerates some pre-existing it must be the sole cause of incapacity worker’s for work in order for the worker be com- second, pensated for the full extent of the incapacity, its posi- tion that occupational conditions must be the sole cause of an disease in for a occupational order worker to be compensated for the full extent of the work caused the disease. Part I majority’s of this dissent will address the first position and II, Part its second. way Interestingly, ambiguity 5. did not find its into the Commission’s find-
ings hearings pursuant until after the evidence adduced to our remand order. pre-remand In the Commission’s order it found: disease, lung plaintiff In “6. addition to her chronic obstructive suffers phlebitis, and has suffered for some time from varicose veins and diabetes. causing disability. Such conditions constitute an added factor in her “7. occupa- chronic obstructive Plaintiff suffers from peculiar tional disease due to causes and characteristic conditions trade, particular occupation employment industry. textile Her ordinary general public equally disease is not to which the of life exposed employment. outside such plaintiff “8. Due to the disease suffered and due to her infirmities, bronchitis, physical including phlebitis, other diabetes, varicose veins and earning capacity employment has no for which she qualify Fifty-five can in the labor market. such is due to disease and such is due to her defendant-employer.” not related to her infirmities supplied.) (Emphasis order, hearing pursuant After further to our remand all of which tended evidence suffered, entirely it to show that whatever for work Mrs. Morrison *20 disease, findings lung supra, the then couched its due to her see note which was and conclusions terms of a chronic obstructive disease only part” exposure Mrs. dust. “in Morrison’s to cotton I An not be the sole cause of a disease need occupational work order for the worker to be com- incapacity worker’s for full If an incapacity. occupational to the extent such pensated pre-existing or interacts with certain physical disease combines totally incapacitated the for infirmities so as work, render worker where, as incapacity our an award for total permit statutes here, non-job-related infirmities physical the pre-existing, disease, are the insufficient occupational themselves absent any Typically, for work. in these kinds of incapacity to cause or other kinds of cases the worker suffers various them, but, able to and does continue to despite infirmities is in the compensation work. He is not at this disabled sense.6 point occupational The worker then contracts disease suffers If injury7 him for compensable incapacitated which renders work. healthy, may the have perfectly the worker had been disease Because, however, incapacitated. rendered him partially pre-existed the the infirmities which onset of certain pro- interaction with these infirmities in combination or disease such the law in this and for work. In cases incapacity duces like ours is and should be that with statutes jurisdictions all other award for total Because incapacity. worker receives an truly is the precipitating disease occupational such cases the work; is for it the cause incapacity worker’s entire cause not have occurred. Said would without which which have the worker would way, it is the cause without another had full work. capacity cases, contrary ma- must worker in such to the
Neither
assertion,
medically
disease
jority’s
occupational
show that
these
or that
infirmities
pre-existing
related to his
infirmities
medically
by the disease. The
aggravated
have somehow been
and the
infir-
is not how the
other
question
97-2(9)
Disability
“incapacity
6.
in the
sense is defined in G.S.
receiving
injury
wages
at the time
because
to earn the
injury
employment.'” Furthermore
in the same or
“the
97-29
97-30
but for
G.S.
and G.S.
is awarded not
work.”
resulting
7.
. . .
from an
disease”
treated
“Disablement
happening
compensation purposes as the
of an
accident. G.S.
same for
97-52;
v. Stevens
It is majority’s this not the principle, restricted understand- ing of aggravation principle, governs this case under the interpretation being now findings Commission’s discussed. Professor Larson notes that is better in “[njothing established Larson, says, law” principle. than He Work- (1981)(herein “Larson”): Compensation men’s Law 59.22 § statute,
“Apart special ‘disability’ from apportionable does not include a or prior non-disabling defect disease that con- tributes to the end result. is better in Nothing established that, compensation law than the rule when industrial condition, disability from latent precipitates prior a such as disease, cancer, like, heart back weakness and the the entire disability compensable, except is in states having special aggravation statutes on no is attempt made to weigh the relative contribution of the accident and the pre- existing disability condition to final Apportion- death. cases, ment in such apply any does nor case which prior condition was not a disability the compensation course, entirely sense. ... Of the matter is different if the degenerative condition itself the cause of the claimed, quite effect of apart Thus, may the industrial accident. it be found on the facts particular a case after period of temporary by accident was completed, subsequent long- range disability entirely stemmed from pre-existing infirmi- ty-
“The essential distinction at here stake is between pre- existing disability that independently produces all the final disability, pre-existing condition that IN THE SUPREME COURT acted the industrial way upon combines with or is
some courts in these cases ... It will be observed that the injury. *22 disability, disability, not as a functional define pre-existing impairment sense of disability as a in the but earning capacity. of then, an must have impairment apportionable,
“To be disability of be- degree some independently producing been accident, to as a continuing operate it must be fore the accident.” disability source after the Motor In Anderson v. support principles. Our cases these (1951), 372, fell slipped S.E. the and employee 233 N.C. back. The wrenching employee conditions his compensable infirmity impaired congenital spine a of the suffered from easily. subjected injury it to more his back’s normal function that had a opinion “per- was of the he employee’s physician The disability” disability his manent that or injury job] be result the last received the “could the [on that time.” denied the could have arisen before Commission he not a any award the basis that had suffered com- on employee employee On the contended pensable injury appeal accident. his that if his rejected argument improperly that the Commission his injury spinal infir- aggravated pre-existing work-related back his mity way permanent partial in such a that it contributed to would entitled to This compensation. he Court concluded, validity employee’s argument. It recognized the however, not the reject argument the Commission did but in- plaintiff compensable found that had simply sustained findings of the Full jury. The the interpreted Court mean, 267: 64 S.E. 2d at id. at injury by a personal the suffered accident “Although in the of his arising out of and course on March, 1949, nature, injury inconsequential such not, either itself in combination with the pre- did or i.e., infirmity disability, the cause plaintiff, existing the power, plaintiff.” (Emphasis sup- loss of wage-earning plied.) adopted Anderson also for the first majority,
As noted in the aggravation principle following time in North Carolina 267: id. at 64 S.E. 2d at language, FALL TERM to be on in this specific “While there seems State, no case point jurisdictions uniformi- courts hold virtual ty that when an with a pre-existing afflicted infirmity injury by disease or suffers a personal accident aris- ing out of and the course of his and such in- employment, materially accelerates jury aggravates pre-existing or infirmity proximately disease or and thus contributes to the employee, injury death sable, is compen- though
even it would not have caused death disabili- ty to a normal person.”
Even if medically aggravate did Anderson, pre-existing infirmity in there is spinal suggestion no in the opinion aggravation should be principle limited this kind of connection. Indeed the Court in Anderson denied the *23 any worker award not it was because concluded there no ag- condition, gravation pre-existing but also because work- not, fall related “did either of itself or in combination with the infirmity . . . . . pre-existing wage-earning cause . loss of 375, 64 power.” Id. at S.E. 2d 267. (Emphasis at supplied.) Service, (1978), Little v. Food 743 N.C. S.E. 2d strongly supports the that our proposition Workers’ Com- an pensation Act who incapacitated for work all, be must if at compensated, under G.S. 97-29 notwithstanding the total be incapacity might due to combined effects non-job-related infirmities and an industrial injured accident. Ms. Little was under compensable cir- cumstances a fall a over bucket which in mop resulted signifi- injury cant her cord in the spinal mid-cervical region. Medical evidence showed that fifty she had a percent disability with reference to her “total life “40 function” and a percent disability to the system.” Full neurological The Commission found that Ms. Little suffered “an average permanent partial of 45% her loss use of back.” Accordingly, it awarded 97-3K23).8 for 135 weeks pursuant to G.S. evidence, however, also tended show that Ms. Little old, obese, fifty years education,
was over with an eighth grade Act, 8. Under this section Compensation of the Workers’ Ms. Little would have been entitled for 300 weeks “for the total loss use of’ her back. earning per $2.00 laborer less than working and had been injury to her cord resulted weakness spinal hour. The body. Noting this throughout extremities and numbness uncontradicted, this reversed and Court additional evidence Little’s on the that Ms. proceedings ground remanded further non-job-related with her infirmities injury job on the combined an of total under G.S. qualify well her for award might Huskins, said, in an Justice opinion 97-29. This Court N.C. 531-32, 246 at 746: S.E. 2d 97-29 is all under G.S. not whether inquiry “The relevant are degree injury persons plaintiffs capable some has but whether working earning wages, herself Co., 233 In Anderson v. Motor capacity. such Ervin, Court, (1951), writing S.E. 2d Justice for the noted: specific point seems to no case on the ‘While there State, jurisdictions hold with virtual uniformi- courts other ty afflicted with a pre-existing that when an employee infirmity injury by aris- personal disease or suffers accident of his in- employment, out of and in the course such ing materially jury aggravates pre-existing accelerates or infirmity and thus contributes to the proximately disease or injury compen- employee, death or sable, it would not have caused death or dis- though even ability person.’ Similarly, pre-existing to a normal if age, education work ex- employee’s conditions such as degree causes him a greater are such that perience *24 work than the same would cause incapacity for must be employee compensated some other person, suffers, degree he she and not or incapacity someone with disability which would suffered of superior who is younger or work or experience education Larson, A. Workmen’s Compensation in better health. See (Em- 57.52, (1976), cases collected therein.” nn. 96-97 at § phasis supplied.) said, 533, 246 S.E. 2d at 747:
The N.C. Court also remains: To what extent is question “So ultimate earn, any employ- in the same or able to plaintiff now ment, injury? at the time of her receiving she was wages wages, she is any If work and earn she unable to 97-2(9). event, In that all injuries disabled. G.S. unless are 97-31, included in the set out in she entitled schedule G.S. disability to an award for total 97-29. permanent G.S. “If she is work some but wages, able to and earn less receiving injury, than she was at the time of her she is par- 97-2(9). tially disabled. In that she is to an G.S. event entitled injuries award under G.S. 97-31 for such of her listed are section, in that and to an award 97-30 additional under G.S. impairment wage capacity for the which is caused earning (Em- any injuries not in the listed schedule G.S. 97-31.” original.) phasis course, was, of no
There medical connection between the in- juries Ms. Little her work-related fall her pre- suffered obesity, advanced existing age, and limited education. Yet this Court, expressly employing the aggravation principle announced Anderson, Ms. compen- concluded that Little was entitled to be sated for whatever for work she suffered reason injuries combined effects of suffered her work-related fall and these other pre-existing conditions.
The
has
so
Appeals
expressly
Court
held in Mabe v.
(1972),
Granite
30 Burlington Industries against defendant’s contention
The affirmed Appeals Court work it be disabled to were would not employee that the education, contributing age poor factors his and not for the The beyond employer’s control. Court of both which were the at by saying, 15 N.C. App. answered this contention Appeals 255-56, 189 S.E. at 806-07: the upon is what effect the disease had question
“The has what a not effect earning particular plaintiff; capacity employee would an impairment upon like have physical average intelligence. and age is that an
“The answer
defendant’s
[to
contention]
If
in-
he is.
a
employer accepts
compensable
as
condition,
as
a
such
heart
jury precipitates
latent
like,
cancer,
the
the
back
and
entire
weakness
to
disability
attempt
weigh
is made
compensable
no
the
pre-existing
the relative contribution of
accident and the
Larson,
Law,
59.20,
2
Compensation
condition.
Workmen’s
§
token,
By
88.109.
p.
same
an industrial
renders
if
employee actually
any wages,
to earn
incapacitated
a
may
disability
ask that
employer
portion of
charged
age
advanced
on
employee’s
poor learning
it were not
these
he
grounds
might
if
factors
(Emphasis
still
earning capacity.”
supplied.)
retain some
The
this case was
governing
applied
Pruitt
principle
(1975),
218
876
App.
S.E. 2d
Publishing
N.C.
Knight
rev’d on other
289 N.C.
“An employer takes his as he them. employees finds v. Mabe North 15 Carolina Granite N.C. 189 Corp., App. (1972).See, S.E. 2d e.g., Edwards Publishing (1947) 184, 191, S.E. (Concurring opinion J.). Seawell, employee job Each to the his brings par- own ticular set strengths weaknesses. That one peculiarly disposed injury infirmity because disease incurred his sound prior employment no affords basis a reduction in The fact that employer’s liability. a of normal faculties condi- person working the same tions might injury have sustained the same to the same is immaterial. was degree day’s putting Plaintiff forth full day’s work There is no evidence that pay. plaintiff’s full to earn in the course capacity defendant’s was at all the 1961 printing plant impaired by after-effects of automobile accident.
“The force injury record reveals the the causal infirmity into which transformed latent within Act. The contemplation Compensation of the Workmen’s after-effects, injury both spent; force of the earlier term, short had abated to the extent that long and — heavy plates lead lifting manual labor regularly performed — plant. The vulnerative employer’s printing at defendant directly upon the situs force of the 1972 accident acted . . *. surgery, causing, impingement earlier By L3 theretofore process.’ invading the old fusion on spinous IN THE SUPREME COURT injury the accident of unoffending of the earlier aspects plain- cause of plant prime defendant’s became printing disability. tiffs *27 authorize special
“Our act contains no statute which would in the instant case. apportionment a preexisting impair- “There is a distinction between all a disability, independently producing ment final of subsequent and a condition acted a preexisting upon by ag- injury disability. which gravating precipitates Plaintiff’s category. claim in the latter falls majority, is in with the and we “Our decision accord better, which have jurisdictions think the view of those subject on infirmities spoken preexisting aggravated by ... So as an individual subsequent injury. long industrial hired, which he was then the doing is that for capable liability injury for due to industrial accident employer’s due to the of a nonin- ought not be reduced existence infirmity. capacitating apportionment
“There are limited provisions Law. our Workmen’s Pursuant Compensation disability may injuries apportioned to G.S. 97-33 between military sustained in the connected with service those has held the employment. Supreme course of other Court is by designed to thwart double policy evinced this statute 353, 355, Upholstering recoveries. Schrum 385, 97-35 provision 199 S.E. G.S. also has limited to successive application Its restricted apportionment. injuries employment, of the same and certain arising out applicable of these statutes other cases. Neither no plaintiff facts this case where received which of a injury noncompen- earlier back arose out his separate apart sable automobile accident employment.” (Emphasis supplied.) Judge Pruitt virtue of Clark’s appeal On defendant’s in an opinion this Court Appeals, dissent Court conclusion that Appeals’ Justice Huskins the Court of agreed 97-35, statutes, 97-33 were through G.S. G.S. apportionment our appeal This viewed the inapplicable. presenting two Court determinative 221 S.E. 2d 357: questions, N.C. at at “1. Is written I. agreement bound on C. Form 26 approved by dated June the Commis- sion, wherein agreed pay agreed defendants and plaintiff accept compensation percent based on a disabili- partial ty of his back?
“2. is paid compensation Where for a employee period temporary compensable materially aggravated preexisting 25 percent perma- nent loss of so partial use back that the had a 35 percent permanent partial loss of use of back healing end of the is the period, employee entitled to compen- 97-31(23) sation under G.S. for 10 or 35 per- *28 manent loss partial of use of the back?” The the the question Court answered first in affirmative and did not consider the second.
Our apportionment application statutes have no to this case. no argument Defendants make based on them. Pruitt,
As with Mr. Mrs. Morrison’s infirmities which pre- diseases, medically existed the onset of her while functionally significant, physically debilitating, and perhaps in disabling, compensation were not the sense disabling because they had any incapacity not resulted in for work. Mrs. Morrison like Mr. work incapacity Pruitt suffered no until the onset of lung her chronic which, disease. It was lung obstructive disease Pruitt, in infirmity the words of “transformed latent into disability within the contemplation Compensa- Workmen’s tion Act.” 27 N.C. 218 S.E. 879. App. lung 2d at The cause, cause, then the the was effective of precipitating Mrs. total Morrison’s for work. It was the cause without which Mrs. would have had no work at all. Although there medical connection and no mo aggravation medical between Mrs. Morrison’s disease and infirmities, her preexisting totally she is as incapacitated a result the combined effects of or the interaction between the Therefore, disease and these infirmities. under the prin- Little, Mabe, in ciples recognized Anderson and in applied and Burlington Industries Pruitt, in- is entitled to award for total Mrs. Morrison capacity. and country jurisdictions with total throughout the
Cases 97-29 97-30 similar to G.S. and incapacity statutes partial statutes are accord special apportionment the absence of our cases. 577, 584, Bank,
In v. Nat’l Mich. Sheppard Michigan (1957), said: N.W. 2d the Court law than that the “Nothing is better settled in they plant as Some gate. act takes the workmen arrive at Some, are ad- strong. particularly age are weak and some vances, ‘disease or condition’ and some pre-existing have They equally have not. No All must work. share matter. press stringencies hazards of the their families want, all, they share in the equally protec- in our opinion, accident, regardless act event of an their tion condition health.”10 prior (Me. 1976), A.
In Wadleigh Higgins, a back cir- employee compensable suffered larynx, also suffered from carcinoma of the gout, cumstances. He spinal column. The Maine Industrial and osteoarthritis fact “is found as a Commission, however, also found that 90 per- disabled.” The injury. his to his It cent of attributable back as in a of 90 percent partial made disability. award case Supreme Judicial Court of Maine sustained the *29 was employee’s compensation and held that he entitled to appeal disability notwithstanding for finding Commission’s disability was of his total attributable to conditions said, A. back The Maine 2d at injury. other than his Court 532-33:
“An who compensate employee is dis- employer [must] as a result between a work related abled interaction payments Michigan provide incapacity for 10. statutes for “total” for work respective “resulting “partial” incapacity where the is one work injury. Comp. Laws from” Mich. Ann. 418.351 and 418.361. an industrial §§ does, however, apportion Michigan statute seem to awards pre-existing non-compensable aggravate Comp. disabilities. Mich. diseases 418.431, Laws Ann. 418.535. §§ injury and a preexisting but non-disabling injury or disease to the full extent of his incapacity even though injury would not have extensively so disabled a healthy individual. The principle may be corollary seen as a of the oft-stated maxim that finds employer takes his employee as he him.”11(Emphasis supplied.) Ass’n, Inc., In Reynolds v. Ruidoso Racing 69 N.M. (1961),
P. 2d 671 the employee suffered a compression fracture of a spinal vertebra under compensable circumstances. Before this injury he had suffered two other fractured vertebra which had satisfactorily healed. He also suffered from osteoporosis, or unusually porous and supple bones. The factfinder found that the employee totally and permanently disabled “from doing gain- ful and useful work that he is capable of performing” but that only 10 percent of was due to his compensable back injury, the rest due being to his osteoporosis, the cause of which factfinder, therefore, was unknown. The awarded the employee as if he had been disabled. The Supreme Court of New Mexico held that the was entitled to com- pensation disability. for total It recognized that there was no evidence that the compensable back aggravated his pre- existing bone disease in a medical sense. Rather the physical com- bination of the back injury and the bone disease resulted in total disability. quoted The Court with approval from 1 Larson 12.20 § (1952),as follows: infirmity
“Pre-existing or of the employee does not a claim disqualify under the out of ‘arising employment’ re- accelerated, if quirement the employment aggravated, infirmity combined with the disease or the death produce for'which sought.” (Emphasis supplied.)12
The court also cited with approval National Homeopathic Hospital
(D.C.
Britton,
Association District
Columbia v.
“In is not what the accident a negligence question actually what it have done to a different man but did would compensation This is true in cases. equally to its victim. must, compensate in general, the employer Therefore his although an accident consequences workman for (Emphasis them.” previous cooperated producing defects original.) “44 in- also noted that states have second
The New Mexico Court
dilemma
answering
presented
as a means of
jury funds
of full
the rule
responsibility
ap-
with rules
dissatisfaction
six that
New Mexico
one
has never
portionment,
257-58,
Id.
In Zinc Co. v. National years He for 21 suffered from worked employee emphysema. evidence processing to zinc The equipment. in close proximity zinc breathing processing that fumes from the to show tended emphysema with his had pre-existing in combination equipment Oklahoma, disability. Supreme Court resulted however, that the should rejected argument defendant’s disability resulting of his recover 59.21, 2 Larson 59.30 North has second See 13. Carolina §§ statute, point quite application Its limited. The has been G.S. 97-40.1. fund appear application in Mrs. Mor- argued it would not the statute has but rison’s case. *31 Morrison v. fumes
breathing
from the zinc processing equipment. The Court
said,
“It is settled law in this jurisdiction that disability from an accidental injury which aggravates or accelerates a dor- mant disease is compensable, even though the physical condi- to, increases, tion of employee pre-disposes him the harm of a particular injury. We can perceive of no valid reason situation, why where, a different rule should govern a as in case, the instant the morbidity from compensable exposure to statute, toxic substances as defined rather than an acci- dent, augments or accelerates a disease upon it superimposed, ultimately so as to produce disability. In both instances the entire disability arising cumulative ef- harm compensable combined with a non-occupational fect of illness, each interacting upon other and operating together, the proper basis an award.14 (Emphasis sup- furnishes plied.) These cases establish the following principles applicable in compensation cases: An employer takes his workers as he finds them with all of their infirmities and weaknesses. In terms of their causal relationship incapacity for work occupational diseases are treated like industrial accidents. The industrial acci- dent or occupational disease need not be the sole cause of the in- capacity for only work. It need be a contributing factor in the effective, sense that it is the or precipitating, cause of the in- work, capacity for or a cause without which the incapacity for work would not have occurred. Neither is it necessary that the in- dustrial to, accident or occupational disease be medically related medically aggravate, worker’s pre-existing infirmities. It is if enough the industrial accident or occupational disease physical- ly combines or interacts with the worker’s pre-existing infirmities to produce incapacity for work so long as these infir- pre-existing mities are themselves insufficient to cause any incapacity for work. In such may cases the award not be made as if the worker were incapacitated to the extent of the industrial accident’s or occupational disease’s contribution. The worker in such cases employs 14. Oklahoma “resulting language from” in its (West). statutes. Okla. Stat. Ann. tit. 11§ Burlington Industries work, full extent his to the compensated must or total. partial be it findings Commission’s Applying principles these *32 discussed, decision of now the Court being
the interpretation The evidence shows at most that should be affirmed. Appeals between, of, Mrs. Mor- effects the interaction the combined other infir- physical disease lung rison’s occupational There is no evidence for work. produced incapacity mities were infirmities themselves these other The has any for work. incapacity sufficient to cause for work due to Morrison is incapacitated found that Mrs. certain pre- disease and other the combined effects any of the pre-existing It has not found that existing infirmities. cause Mrs. Morrison in themselves to infirmities were sufficient must be have work. Therefore the award to for incapacity. made for Morrison’s total Mrs.
II An need not be the sole cause cause or condition occupational worker to be compen- of an disease in order occupational by for work caused sated the full extent of the disease. For and therefore occupational compensable a disease to be (1) 97-53(13) G.S. be met: must be “two conditions must It are
‘proven to be due to causes and conditions which
trade,
a particular
characteristic of and
peculiar
occupation
(2)
an ‘ordinary
It
be
disease of life to
employment’; and
cannot
equally exposed
employ-
which the
is
outside
general public
”
Center,
458, 468,
ment.’
256 S.E. 2d
Booker Medical
N.C.
(1979).
189, 196
risk
contracting
If there
the disease
greater
is
given occupation
workers
in a
because
conditions
“characteristic of and
the “nexus be-
peculiar”
occupation,
tween the disease and the
which” makes the disease
Id. at
compensable
provided.
therefore
capacity
to work. Not
is this position
supported
authorities from
jurisdictions
which- have considered the
Court,
precise
now
question
before this
it is
also supported
analysis
strongly
Court’s
of a
analogous situation in Vause v.
Vause Farm
63 S.E.
Equipment
2d 173
In Vause the worker suffered from epilepsy. He was driving
truck
the course of his employment. Apparently
sensing
seizure,
onset of an epileptic
the worker was
pull
able
truck off the road and
it to a
bring
complete
lay
He then
stop.
*33
down on the seat of the truck
he
when
suffered an epileptic
him
seizure that caused
to lose consciousness. When he regained
consciousness he was
onto
hanging
the
wheel
steering
with his
body
hands. His
was outside the truck with one foot on the run-
ning
dangling
board and the other
beside it. The Industrial Com-
down,
mission
the
lay
found that
worker “as soon as he
became
unconscious and on account of his illness or seizure moved on the
seat of the truck while in an unconscious condition and fell from
the
running
seat of the truck to the
board or
. . .
ground [and]
that as a result
the fall . . .
suffered a fracture and dislocation
. . .
hip
pelvis.”
the
and socket and also a fracture of
the
Id. at
90,
“It
considered decisions
the
and resultant
adhere to the rule that where
accident
in-
idiopathic
arise out
both the
condition
jury
workman and hazards incident
employment,
where
condition
idiopathic
liable. But not so
employer
injury.” (Emphasis
cause
supplied.)
is the sole
41
The Commission in Vause took the same
as the
legal position
concluded, however,
The
Court.
Commission
that because both
the worker’s
and a condition of his
con-
epilepsy
employment
fall,
his
he was
be
full
compensated
tributed to
entitled to
for the
by
extent of his
caused
the fall. The
did
incapacity
due, in
ground
not reduce the award on the
that his fall was
least,
condition unrelated to the worker’s employment.
any
This Court in its
that if
opinion expressly recognized
aspect
of the worker’s
had contributed “in some reasonable
employment
injuries
or had his
been the
his
degree”
epileptic
result both of
conditions,
seizure and some hazard inherent
in his working
worker
have
would
been entitled to
to the full ex-
clearly
tent of
suffered in the fall.
incapacity
Vause
states
that the conditions of
need not be the sole cause
an employee’s injury in order for the
to be
compensated
injury,
for all
for work caused
even
incapacity
though our
statutes
that the
for work
require
incapacity
must
“injury by
“result from” an
arising
accident
out of and in the
course of the
97-29
97-30
employment.”
G.S.
and G.S.
Compare
97-2(6).
with G.S.
in Vause that
hazards need
recognition
occupational
injury
the sole cause of an
in order for the
for work
fully
to be
compensable strongly calls for the
same
to be
proposition
applied
occupational disease cases.
. . .
resulting
“Disablement
disease” is
treated the same for compensation purposes
happening
as the
97-52;
an injury
accident. G.S.
Woods v.
297
Stevens &
636,
All cases from other jurisdictions with statutes like ours ap
ply this rule.
New
Newport
Dry &
Dock Co. v.
Shipbuilding
(4th
Director,
1978),
denied,
583 F.
2d
Cir.
cert.
42
v.
(1979);
711,
Avon
Riley
awarded the of what he would otherwise have entitled to total incapacity. been The Worker’s however, Board, Compensation Appeals apportion- reversed the judg- ment and the Court affirmed the ruling Supreme California said, 454-55, ment of the board. The 3d at appeals Court Cal. P. at 785: Rptr. Cal. come, then, application foregoing prin- “We Dr. Sills’ that 50 ciples. opinion [claimant’s] to harmful pathology exposure was caused substances and smoking provide the remainder to his habit does not a basis from, disability resulting It is rather than apportionment. of, the proper subject apportion- a cause a disease (Citations omitted.) ment; may not be ‘pathology’ apportioned. *36 FALL TERM not attribute The Sills report does rather, it smoking cigarettes; purports of to [claimant’s] Moreover, it does not ‘pathology.’ an of apportionment make disabled as the would have been state whether [claimant] in- of the work-related the absence smoking result of in the appears substances. For all that halation of harmful record, any disability whatever have suffered he would not exposed if he had not been smoking of his habit because In absence of such in his work. substances damaging evidence, justified.” not was apportionment said, McAllister, 2d at Supreme Court Cal. In 418, the California 318-19, at 702-03: Rptr. 445 P. 2d at Cal. that the more smoke decedent inhaled “We cannot doubt
— his con- danger —the of greater from whatever source danger, just His increased that smoking cancer. tracting lung state medical Given the employment. present as did his or it was the say employment we cannot whether knowledge, disease; we can caused the ‘actually’ cigarettes substantially to that both contributed only recognize . . . decedent’s cancer. contracting lung his likelihood [T]he cause’ his ‘contributing need supplied.) injury.” (Emphasis “substantial” contribution “reasonable” or
The notion by the term expressed is better in these cases referred to words, conditions, must in other occupational “significant.” development to the disease’s contributed have significantly “hav- means Significant occupational. to be order for the disease to be con- deserving effect: have influence or likely ing New Webster’s Third Weighty, Important, sidered: Notable.” 1971). (Merriam-Webster is to Significant Dictionary International but not present unimportant, negligible, be contrasted miniscule, note, The factual inquiry, of little moment. worthy of words, was exposure occupational whether the should be without development factor in the disease’s such a significant (2) (1) not have developed have would either it the disease in- employee’s in the as to result an extent to such developed he claims benefits. for which for work capacity course, found case, not have need Commission In this con- significantly exposure cotton dust Mrs. Morrison’s Sherman Textiles
Hansel v. disease. There development to the of her tributed testimony exposure from Dr. that Mrs. Morrison’s Battigelli role in the insignificant or miniscule played to cotton dust have sup- disease. This evidence would development that Mrs. Morrison did not by the finding ported disease. have *37 however, Commission, found in accordance with the
The Morrison on this question, favorable to Mrs. medical evidence is, to the ex- dust had contributed exposure that her cotton finding, disease. This is a lung 50 to 60 tent of effect, contributed to exposure significantly that the cotton dust law, conse- applicable of her disease. Under development have reduced Mrs. Morrison’s should not quently, factor also con- non-occupational that some ground award on of her disease. development tributed to the joins in this dissent. Justice CARLTON Employee-Plaintiff TEXTILES, HANSEL, v. SHERMAN PAULINE C. COMPANY, Carrier-Defendants Employer, TRAVELERS INSURANCE
No. 107 (Filed 1981) 6 October findings § 96— workers’ 1. Master Servant —conclusiveness supported by evidence in a workers’ com- findings made the industrial Commission of fact supported competent appeal if pensation proceeding are conclusive on support findings though evidence which would even there is evidence contrary. compensation occupational § disease 68— workers’ 2. Master and Servant — 97-53, specifically named in than G.S. In those order disease,” “proven “occupational to be due to” it must to be deemed specified in that statute. causes and conditions as —occupational § 68— workers’ 3. Master and Servant necessary compensable of a prove the existence The three elements (1) of a trade or “occupational must be characteristic disease” are: the disease (2) ordinary to which the occupation: disease of life the disease must not be an (3) employment; there must be public equally exposed outside of