*1 IN THE SUPREME COURT 507 Efird Smith v. American & Mills For these reasons there must be new hear- entire record. the 150A-51. ing. G.S. § judgment reversed the of the trial properly below panel cause, reason. The wrong and remanded the but
court is modified and the case remand- decision of Court, Superior to the Wake ed to that for further remand court entry Personnel County, requiring for the of an order State conduct, conducted, or cause to be a new hearing opinion. consistent remanded.
Modified and SMITH, Employee, MILLS, W. AMERICAN & EFIRD v. SPURGEON Plaintiff COMPANY, Employer, and AETNA LIFE & CASUALTY INSURANCE Car- rier, Defendants
No. 160A81 (Filed 1982) May 4 permanent § 69.1— workers’ total disabili- 1. and Servant Master — ty-applicable statute perma- plaintiffs claim for Application the 1978 version G.S. application of substantive did not constitute retroactive nent total I, I, Art. 19 of the in Art. N.C. Constitution law violation of that, although plaintiff disclosed suf- where all evidence- U.S. Constitution money capacity he not become disabled to earn did fered a diminished right no vested and thus recover for until of the 1978 version G.S. 97-29. plaintiff until after enactment disability length compensation partial § 75— workers’ and Servant Master — — expenses medical of award of 1970, plaintiff to an was entitled award 97-59as existed Under G.S. January Industrial expenses beginning on 1 1970 when the Commis- medical long disability began extending so as the treat- partial that his sion found Therefore, plaintiff was recover all entitled to provided relief.” ment “needed and the date in when expenses between totally incapacitated and entitled to medical to have become was found limiting Commission erred and the Industrial under G.S. benefits during to the 300 weeks award of paid. Meyer dissenting. Justice
Smith v. American
Efird Mills
*2
defendants,
by
employer American & Efird Mills and
APPEAL
Casualty
insurance carrier Aetna Life &
Company,
Insurance
(Clark,
from the decision of the North Carolina Court of Appeals
(Robert M.)
J.,
JJ.,
Arnold,
with Martin
and
concurring) reported
(1981).
at 51 N.C.
The Industrial Commission’s award denying benefits for employee-claimant and total under G.S. recovery 97-29 limiting expenses and the of medical to 300 weeks by was remanded of Appeals for findings consistent with the evidence that employee entitled to an award under and to lifetime expenses under G.S. 97-29 dating from the date when the uncontradicted evidence in- dicated that he permanently became and incapacitated. This Court denied discretionary review on 6 October 1981. The defendants petition filed for rehearing, alleging this Court had neglected to consider the far-reaching consequences of the decision of the Court of Appeals. Recognizing that this case does State, present a of first impression we elected to entertain defendants’ appeal and allowed defendants’ petition for discretionary review on 15 December 1981.
The case no presents factual disputes. The claimant worked in the cotton mill employer’s years for some to 1968 and had had some respiratory problems before that date. In 1968 he was quit forced to his job at the mill due to breathing difficulties. Although he sedentary obtained other employment, his average weekly wages began to decline in 1970 and continued to decline 1973. Complainant until 1973, had no earnings the fourth quarter of 1974, 1975, years
nor for the and 1976. again He had some earnings each during 1977 but quarter has reported no earn- ings since the end of 1977.
Smith a benefits; filed claim for Workers’ Compensation on 8 June 1978. He was on September examined 15 1978 and deter-\ mined Dr. Douglas Kelling to be permanently and totally disabled. The complainant was awarded \ compensation for 300 (the weeks 1 dating January from 1970 point in time when his decline) average weekly $8,500 shows its wage first per- manent, injury irreversible to both lungs an opinion and award filed Deputy Commissioner Dianne C. Sellers on January 1980. He was also awarded all medical expenses out of arising his occupational disease. & Gfird Mills
Smith v. American and award opinion from the Defendants appealed The Commission to the full Commission. Commissioner Deputy April award on 3 Commissioner an filed (Commissioner concurring; Commissioner Stephenson, Brown Vance, compensation to dissenting) limiting plaintiffs the award of limiting 1970 and beginning weeks period. the same 300-week 97-86.1 an permits to G.S. appealed pursuant Plaintiff Accordingly, award. Commission’s portion appeal lump payment sum Commission ordered *3 having portion of the appealed defendants not
compensation, (1) Thus, were Appeals issues before the Court award. denying plaintiff erred in to Industrial Commission whether the (2) disability and an award under G.S. for recovery of limiting erred in plaintiffs whether the Commission 300 weeks. expenses for failure plaintiffs appeal dismissed Appeals The Court full Commission’s days opin- file from the date of the within however, award; significance because of the of the issues ion and Appeals Court of issued writ certiorari appeal, 21(a) presented review the issues under Rule Appellate Clark, by Judge In the Court of an plaintiff. finding for the case to the Industrial Commission
remanded permanently was evidence that plaintiff with all the accordance entry of an award of and for and plaintiff 97-29 as it existed in when under G.S. totally disabled.. The Court of Appeals became and permanently was under plaintiff held that entitled to also the date plaintiffs dating 97-29 for remainder of life from discretionary disability. We and total granted of permanent review decision of the Court of Appeals. review to Lore, Hassell, Lore, ap- & R. James plaintiff Hudson pellee. Kincheloe, Feerick, Eatman,
Hedrick, by J. A. Gardner Gardner, III, defendant-appellants.
BRANCH, Chief Justice. emphasize we there opinion,
At of this the threshold full or from the Commis- appeal was no defendants IN THE SUPREME COURT
Smith & Efird v. American Mills permanent partial disability sion’s award of for in provided Therefore, us, 97-30. portion of the case is not before that award remains in full force and effect. adopt
We as our own the approve well-reasoned and well-documented decision of the panel unanimous the Court of However, we Appeals. necessary deem to consider and decide two points which were not considered in the decision of Appeals.
I [1] of Appeals failed to address the whether of the 1978 version application of G.S. 97-29 to the facts of the case before us constituted an unconstitutional retroactive law. application of substantive argue
Defendants that when plaintiff suffered “a diminished money” to earn his capacity substantively claim vested liability and his employer exposed at that time. Defend- ants therefore contend that to apply the 1978 statute would in- terfere with vested rights and liabilities so as to contravene I, Article Section of the North Carolina Constitution1 and Arti- I, cle Section of the United States Constitution. We do not *4 agree.
It must be first borne in mind that there is nothing before
this
relating
to plaintiff’s entitlement under G.S. 97-30 to
permanent
disability
for the
1970 to
1978. The sole question before us in
deciding
of
assignment
error is
plaintiff’s
whether
claim
permanent
for
total
a
amounted to
retroactive application of the 1978 version of G.S.
(1973
2).
1308,
1,
97-29.
Sess. Laws
N.C.
Ch.
In our opinion,
§§
Co.,
636,
(1979),
Wood v. Stevens &
297 N.C.
256 S.E.
692
2d
is
dispositive of this
question
adversely
answers it
to defend-
ants’ contention. In Wood Chief Justice Sharp
speaking
(Justice
unanimous Court
taking
Brock
no
in
part
the considera-
case)
tion or decision of the
stated:
reality
I,
argument
Defendants’
is
upon
in
based
Article
19 and not
16
solely
which is
post
application
concerned
ex
of criminal statutes. We
facto
I,
will
assignment
consider this
of error
itas
relates to Article
19 of our State
Constitution.
IN THE
511
SUPREME COURT
Smith v. American & Efird Mills
for consideration is not whether the
question
The proper
obligation of contract but
imagined
amendment affects some
it
rights
whether
interferes with vested
and liabilities.
rather
Center,
we
in Booker v. Medical
a statute
not
As
unconstitutionally
observed
merely
on
operates
retroactive
because
its
297
facts which were in existence before
enactment.
N.C.
accord,
467, 256 S.E.
at 195. See in
Frisbie v.
at
2d
Sunshine
(1969);
Co.,
169, 457 P.
93 Idaho
2d
Tennessee In-
Mining
(Tenn.
Pack,
v.
All the evidence Thus, no to recover not until 1978. right become total vested until after permanent possible liability 97-29. No enactment of the version permanent as a result of plaintiffs accrued to defendants of the 1973 the enactment and effective date until after of G.S. 97-29. revision the 1978 version G.S.. application
We therefore hold not constitute an unconstitu- to the facts instant case did law. application tional substantive
II [2] The other which the failed ad limiting its Industrial erred was whether the dress with the conjunction of medical expenses award to 300 weeks. partial award *5 incapacity partial that plaintiff’s determined began in 1970. expenses for medical for an award
and entitlement Therefore, of Appeals, of the Court with the decision consistent of expenses period the award of year in the in effect statutes pertinent must be governed Smith v. American & Efird Mills 1970. The full Commission’s award in instant case made no reference to the which it statute under made its award. In 1970 97-25 G.S. and G.S. 97-59 each contained provisions to applicable an employee’s entitlement to an award for medical expenses. general
G.S. 97-25 is the more of the two statutes was part first as a enacted North Carolina original Workmen’s2 Compensation Act. Sess. Laws 120. The original N.C. Ch. act made no provisions occupational applied diseases but to injuries by original provisions accident. The of G.S. 97-25 limited allowable medical to ten weeks for treatment “required to effect a give cure or relief and for such additional time as judgment of the Commission will tend period to lessen the disability . . .” . 97-59 enacted 1935 when the provisions of the
Workers’ Compensation Act were revised so as to extend coverage for victims of diseases. In 1970 that statute specifically provided: disease,
In the event from an occupational employer shall provide reasonable medical other treat- and/or ment for such time as in the judgment of the Industrial Com- will mission tend to lessen the or provide needed relief .... [Emphasis added.] We now turn of which of the statutes is ap- plicable instant facts. generally applies awards of medical benefits
under the Workers’ Compensation Act. G.S. the later statute, applies enacted specifically awards of medical benefits involving cases occupational disease. Where one statute subject deals with a in general terms and another statute deals with part subject the same detail, the specific statute will be construed controlling, unless it appears that the Legislature intended to make the general controlling. act This is especially so when the specific act is later in point time. 2. In 1979 the official title of this Act change was amended to the word
“Workmen’s” to “Workers’.” 1979 N.C. Laws Sess. Ch. 1. For the sake of consistency, references employ hereafter to the presently Act will the title as it reads. *6 IN THE SUPREME COURT
Smith v. American & Efird Mills Control, National Food Stores v. Board Alcoholic 268 N.C. (1966). 151 S.E. 2d 582 We find nothing that indicating Legislature in- did not tend that the specific latter statute control. We therefore hold that G.S. 97-59 is applicable to the facts of this case. statute, The latter specific differs from the
former, 97-25, in that it states two grounds upon which the Commission shall extend medical benefits. These grounds are stated in the disjunctive so if either is found to exist Commission, an award for medical benefits must be made. The ground pertinent to this appeal is a finding that the treatment would “tend to provide needed relief.” The Commission in its find- ing of fact number six found “that medical treatment will be necessary for plaintiffs lifetime and will provide relief, needed though treatment will not reverse the damage which lungs has become permanent, but will only serve to prevent further damage.”
This finding was supported competent evidence and is Industries, Inc., therefore conclusive. Inscoe v. DeRose 292 N.C. (1977). 232 S.E. 2d Such a finding mandates an award of medical expenses as long the treatment provides needed relief. so, Even the Commission limited its award of medical expenses to 300 weeks. We are unable to find anything the Workers’ Com- pensation Act which permits Commission to limit the award of medical expenses under G.S. 97-59 to the period of time in is paid. Upon finding that the treatment would relief, provide needed necessary it was not under G.S. 97-59 for determine that such treatment would also lessen the of disability.
We therefore hold that plaintiff was entitled to an award of expenses beginning 1970 when the Commission found that his partial began and extending long so as the course, treatment provided “needed relief.” Of when plaintiff became he at that time became entitled to medical benefits under the provisions of G.S. 97-29.
We note that G.S. 97-59 requires “all such treatment shall be first authorized the Industrial Commission after con- sulting Advisory with the Medical Commission.” Obviously, strict
Smith v. & Eiird Mills American *7 in an in this case absurdity would result proviso adherence to this for of his un- by denying medical treatment plaintiff he prior because failed to diagnosed get disease had no to seek ap- for the treatments. Plaintiff reason approval diagnosed compensable until his condition had been proval occupational disease. Co., 265 S.E. 2d In v. & N.C. Taylor Stevens stated,
(1980), . we “It is . . we a similar There find situation. for intended that a claimant Legislature clear that our never would have to make a correct workers’ benefits compensation by his own notification prior of condition to diagnosis medical authority timely of his in order make his other disease medical with a concerned claim Although Taylor claim.” than claim for we expenses, rather analysis may same obtains. The Commission still believe that the Advisory as to the consult with the Medical Committee cost hold reasonableness of the of the treatment. We therefore in G.S. 97-59 of of medical prior approval that the requirement reasonably in cases where it is practicable treatment applies note in the passing present such We that approval. to seek prior 97-59 omits the authorization requirement version G.S. merely be the approved medical bills Com- requires Sess. 339. mission. 1981 Laws N.C. Ch. award, Industrical
In its the Commission’s Con- opinion three provides: number clusion Law treatment, solely For reasonable [sic] and/or plaintiff’s nature as to tend to lessen period of such a oc- needed relief from his provide or plaintiff during disease and incurred 300-week cupational to bear the employer obligated beginning [Emphasis supplied.] cost thereof. above, 300-week stated we hold that
For the reasons opinion deleted from the and award. limitation must be is modified and af- of the Court of The decision firmed, with to the of Appeals is remanded and this cause en- to the Industrial Commission it be returned direction that Ap- the Court opinion in accordance with try of award contained the limitation sole modification peals Smith v. American Efird Mills of Law Conclusion number three be deleted so that the amended subject award authorization the Commission after con- will— sultation with Advisory Medical Committee —allow recover all medical expenses incurred between 1 January 1970 and the date in 1978 when plaintiff is found the Commission to have become incapacitated.
Modified and affirmed.
Justice MEYER dissenting. I must dissent from respectfully of the majority. counsel, By stipulation of there is no issue on this appeal con- *8 testing Findings of Fact or Conclusions of Law of the In- dustrial plaintiff Commission that suffers from an occupational reason, disease. For that no evidence to relating compensability — brought by was forward in the record also agreement of counsel. The defendants not exception any did take to or make cross assignments of error with to the regard Industrial Commission’s finding adopting consulting physician’s opinion plaintiff totally byssinosis was And, and disabled from in permanently out, the majority there is no opinion points appeal con- cerning permanent disability award for the partial period 1970-1978 97-30. pursuant G.S. While there are other matters § should, in might, my have been brought for- (1) ward, this is a limited restricted to the matter of appeal disability award of benefits for total for life permanent under the (2) 97-29 as it existed in 1978 and provisions G.S. the award of § my lifetime I shall therefore limit medical benefits. remarks to the matter of the retroactive of the award with aspect regard those two issues. I believe that the award of lifetime benefits to Mr. Smith amounts to a retroactive ap- 97-29. plication substantive law—the version of G.S. § that, case,' I also believe under the facts of this it is error to award the for life. I convinced am neither result was intended our Legislature. not situation in which a claimant has previously
This is received, disabled has partially been determined to be or is benefits at the time benefits are increased receiving, totally Legislature or at the time he becomes disabled. This claim- in 1978 ant was determined to be disabled for the first time at Smith v. American Efird Mills totally he was found to be It was at this which time disabled. that his for the 1970-1978 partial permanent time action, was determined. While I such this determination was not forward on and is not in the brought appeal addressed majority opinion.
The limited appeal apparently taken the reason that while the claimant did not contest the findings and conclusions of the Full to the relating award of benefits under the provisions of G.S. 97-30 as it existed on 1 he did § contest the Opinion and Award of the Full Commission in failing to award permanent benefits under provisions G.S. 97-29 as it existed in 1978 and for its failure to award lifetime § however, medical benefits. The Court of Appeals, noted that evidence had been in adduced the case that the claimant became permanently and byssinosis. disabled 1978 from panel thereby concluded that the Full Commission had erred to award failing benefits for permanent and total under the version of 97-29 as it existed 1978. The panel deter- § mined that the Full Commission was not restricted to that ver- sion of as it existed in 1970 when he first became reason of his disease. The panel also con- cluded that the Commission had erred failing award lifetime medical benefits under G.S. again, as existed in thereby avoiding construction of G.S. 97-59 relating benefits for occupational disease. The *9 said panel that a considera- tion of benefits that be might awardable under G.S. 97-59 was § necessary not in view of the provisions of G.S. although § the claimant was from an suffering occupational disease.
This claimant was born in 1907. He worked in the textile in- 1951, dustry from 1929 to a period of approximately years. 1962, From 1951 to a period of years, approximately the claim- ant He again farmed. was employed industry the textile from Thus, 1962 until 1968. it had been approximately years since he was employed industry textile when in 1978 he as diagnosed byssinosis. being permanently totally reason of This is a claim for an occupational disease under G.S. 97-53(13).It should emphasized be that the pertinent Finding § Fact the Full Commission with regard to the occupational IN THE SUPREME COURT
Smith v. American & Efird Mills disease is couched in the of the statute it language as existed 1970 and not in the as it existed in 1978 when the deter- language Finding mination was made. This Fact serves as a foundation for all of the other and conclusions and the award. In findings per- tinent of Fact No. 1 of part, Finding Opinion and Award of Full as follows: provides
Byssinosis is a disease which is an infection or inflammation of an organ body internal of the due to exposure cotton dust. only This is finding consistent with the language of G.S. 97-53(13) as existed to the amendment 1 July effective Laws, 1971. 1971 Sess. c. s. 1. Prior to 1 July 97-53(13) as follows: provided
The following diseases and only conditions shall be deemed be within occupational diseases meaning this article:
(13) skin, Infection or inflammation of eyes, or other external contact surfaces or oral or nasal cavaties or any other internal or external or organ organs body due to oils, dust, irritating cutting compounds, chemical liquids, fumes, gases any or vapors, other materials or substances. 97-53(13) amended,
Following July provided as follows:
The following diseases and conditions shall be deemed be within diseases meaning this Article:
(13) disease, Any other than hearing loss covered in section, another subdivision which is to be proven due to causes and conditions which are characteristic trade, to a peculiar particular occupation or employment, but excluding ordinary all diseases of life to which the general public equally outside exposed of the employment.
The foregoing of Fact No. 1 is Finding entirely adequate serve as a foundation for an July award under the pre-1 out, however, language of the statute. I would point that there is Smith v. American & E£ird Mills no of fact to of finding support ruling compensability under 97-53(13) version of as it after the amendment of 1 appears G.S. July 1971. Nowhere is there a that the determination claimant’s is to causes and conditions which are disease "due characteristic trade, of to a or peculiar particular occupation employment.” I also out that from the time of this claimant’s point in- January in 1970 there has been no new jury by accident and no new disablement as a result of a subse- to cotton dust to warrant a different aggravating exposure quent that alleged accrual date. It was not even a subsequent occupa- injury or accelerated or exposure subsequent aggravated tional my claimant’s condition. It is view that all of this claimant’s this in original should relate back to the disablement benefits 1970. This should not its on an ar- put stamp approval date, ie., bitrary injury of a new the total occur- finding 1978, condition of the upon changing employee. based ring Co., 636, 644, 256 S.E. In Wood v. Stevens & N.C. 2d (1979), said: Act, injury our Workmen’s Compensation Under disease is when occupational compensable from resulting time, 97-52. Until leads disablement. G.S. no has no employer has cause action and employee version of liability. We hold therefore the current 97-53(13) to all claims disablement in which the applies date, occurs the statute’s July after effective statutory This is consistent scheme for oc- holding . . . diseases as established G.S. 97-52. cupational jurisdictions rule in both this and other is that long-standing cases injury accidental right (Citations injury. law in at the time governed omitted.) effect If from resulting occupational disablement an injury by is treated an accident as required disease 97-52, it follows that the employee’s right compensa- disease should governed by tion in cases of be (Citations omit- at the time disablement. the law effect added.) ted) (Emphasis for the that the first disablement proposition Wood stands 1970) into the law any brings play in this case (occurring kind *11 IN 519 THE SUPREME COURT Smith v. American Efird Mills in effect on that date and that all benefits flow accrue and based upon that disablement date.
G.S. 97-29 as it on 1 1970 clearly existed provided § that benefits would be for a maximum paid weeks “from injury.” the date of the The 1973 amendment that (1973 1308) Laws, statute Session c. which eliminated the 400 weeks’ and the maximum cap benefits’ and added cap lifetime benefits for cases became effective 1 July 1975 only and to cases applied arising July on and after
I Assembly believe that the General intended the result adopted by and the Full incorporated its award and that of Appeals majority and the Mr. misinterpret legislative intent that Smith’s claim should be governed completely by and the law in effect on 1970, 1 January the date of his initial disablement. The long legislative history of clearly G.S. 97-29 legislative establishes a intent only. amendment be applied prospectively With one exception, every amendment to G.S. 97-29 since its adoption has provided only the amendment “shall apply to cases originating on and after” the effective date of the amendment. Laws, 604, 9; Laws, 84, 10; See 1963 Session c. s. 1967 Session c. s. Laws, 143, 9; Laws, 281, 7; 1969 Session c. s. 1971 Session c. s. Laws, 515, 9; Laws, 1973 Session c. s. 1973 Session c. s. 8; Laws, 1103, 2; Laws, 1973 Session c. s. and Session c. s. 8. only exception was the first amendment in 1957 which 1, 1957, provided that the applied July amendment “on and after and injuries shall not apply occurring before said date.” 1957 Laws, Session s. 3. c.
The wisdom of the Legislature in its apply intent amendment now under only consideration can prospectively perhaps be indicated an example. Assume that a co-worker of this claimant who had worked at the job same claim- ant’s during side his entire employment history became per- manently also, and totally disabled as of 1 January 1970. Assume Commission, as found that Mr. only Smith was partially disabled as of that same date. The co-worker would have been relegated to the provisions of they existed on 1 January 1970 and would have been limited to weeks of com-
State v. Jones $50.00 at a maximum rate of for his total pensation Smith, however, disabled, disability. Mr. being then partially ultimately has obtained benefits for his lifetime in a payable *12 far amount than the co-worker who greater per- was disabled manently years for a at least eight longer than now, this claimant. the co-worker in or can he reopen Could his claim on the basis of change condition and have his claim pursuant decided the of G.S. 97-29 as it existed in provisions § today? or as exists the thousands of who persons Could only became in 1970 or partially thereto and whose benefits have been exhausted now for current apply benefits because changed disability? their condition has to a permanent What will the be on impact employers whose current workers’ compensation coverage does not extend to these claimants who may have now been separated from their employment perhaps years ten or more? I fear that will majority opinion open Pandora’s box of claims never contemplated the Legislature. I vote to reverse the decision of the reinstate the Award of the Full Commission.
STATE OF v. NORTH CAROLINA H. MACK JONES
No. 3PA82 (Filed 1982) May 13; 5.1; Municipal Corporations § Constitutional Law Counties 30.4— coun- ty zoning ordinance —aesthetic police consideration exercise of —lawful power quashing against The trial court charging erred a warrant defendant by county him with failure to required erect a fence as ordinance to enclose ordinance, junkyard adjacent his from an promoted residential area. The I, only, aesthetic values did not violate Article 19 of the Constitution of North Carolina and the Fourteenth Amendment to the United States Constitu- finding tion. The expressly ordinance constitutional overruled previous they prohibited regulation cases to the extent upon based adopted stating aesthetic considerations alone and a test that the diminution in property value against of an individual’s should be balanced corresponding gain public regulation. from such The test on focuses the reasonableness regulation determining purpose whether the aesthetic for which the regulation reasonably outweighs imposed related private burdens on the property regulation. owner