Opinion
No. 198PA83
Filed 5 November 1985
1. Mater and Servant 68 — workers' compensation — obstructive lung disease — cotton dust exposure as cause There was sufficient evidence from which the Industrial Commission could have found that cotton dust exposure was a significant causal factor in the development of plaintiff's obstructive lung disease where a physician specializing in pulmonary diseases testified that "She probably has obstructive impairment caused by cotton dust exposure" and "I feel there is an element of pulmonary impairment present which could have been contributed to by her cotton dust exposure."
2. Master and Servant 68 — workers' compensation — cause of disability — occupational nonoccupation diseases — remand for findings Where the Industrial Commission made contradictory findings supported by the evidence as to whether occupational obstructive lung disease (byssinosis) or nonoccupational restrictive lung disease (pulmonary fibrosis) was the cause of plaintiffs wage-earning disability, the case must be remanded to the Industrial Commission for a determination of the cause of plaintiffs disability. Because the evidence in this case does not permit any reasonable apportionment of plaintiffs disability between occupational and nonoccupational disease, plaintiff is entitled to an award for her entire disability under G.S. 97-52 and G.S. 97-29 if her occupational disease was a substantial and material factor in bringing about that disability.
3. Master and Servant 68 — workers' compensation — recovery under G.S. 97-31 — disability not required G.S. 97-52 does not require that disability be shown as a condition to recovery under G.S. 97-31 for an occupational disease.
4. Master and Servant 68 — workers' compensation — award for partial loss of lungs G.S. 97-31 applies to occupational disease, and "loss" as used in G.S. 97-31(24) includes loss of use. Therefore, an award for partial loss of lung function from an occupational disease falls within the scope of G.S. 97-31(24).
5. Master and Servant 68 — workers' compensation — disability — partial loss of lungs — separate awards not permitted The Industrial Commission may not award plaintiff compensation under G.S. 97-52 and G.S. 97-29 for disability resulting from an occupational disease and also award compensation under G.S. 97-31(24) for partial loss of lung function because compensation under G.S. 97-31 is "in lieu of all other compensation."
ON plaintiffs petition for further review pursuant to N.C. Gen. Stat. 7A-31 (1981) of a decision of the Court of Appeals, 56 N.C. App. 697, 289 S.E.2d 846 (1982), reversing a worker's compensation award by the Industrial Commission.
The Court of Appeals' opinion was filed 6 April 1982 but on 17 May 1982 the Court of Appeals allowed Annie Mae Harrell's petition for a rehearing. New briefs were prepared and submitted by the parties. Thereafter on 28 March 1983 the Court of Appeals determined that its order for rehearing was improvidently granted and rescinded the order.
Hassell Hudson by Robin E. Hudson for plaintiff appellant.
Maupin, Taylor Ellis, P.A., by Richard M. Lewis and David V. Brooks for defendant appellees.
Justice BILLINGS did not participate in the consideration or decision of this case.
Justice MEYER dissenting.
Chief Justice BRANCH joins in this dissenting opinion.
This is a lung disease case in which the Industrial Commission awarded plaintiff $4,000 in benefits for "permanent and irreversible loss of lung function" pursuant to N.C. Gen. Stat. 97-31(24) (1979). Both plaintiff and defendants appealed to the Court of Appeals. Plaintiff contended that the Commission erred in not making an award for incapacity to earn wages due to lung disease. Defendants contended that the Commission erred in making any award because N.C. Gen. Stat. 97-31(24) has no application to occupational disease cases unless plaintiff suffers death or disablement as a result of such disease. The Court of Appeals agreed with defendants and reversed the Commission. It concluded that while the Commission's findings were conflicting on whether plaintiff suffered any incapacity to earn wages as a result of an occupational disease, the evidence before the Commission would not have supported a finding that she did. It also concluded that N.C. Gen. Stat. 97-31(24) had no application to occupational disease cases. The questions presented are: (1) Whether there is enough evidence in the record to support a finding by the Industrial Commission that some part of plaintiff's disability resulted from occupational disease and (2) whether N.C. Gen. Stat. 97-31(24) has any application to occupational diseases.
I.
Evidence before the Commission consisted essentially of the testimony of Annie Mae Harrell, plaintiff-employee, and several physicians who treated or examined her. According to her testimony, Annie Mae Harrell was born 16 January 1925 in Johnston County and finished the eighth grade in school. She began working in the textile industry in 1943. She went to work in 1959 in defendant's North Henderson Mill in the weave room where she "filled batteries, weaved, smashed, cleaned up, trained battery fillers" and helped "blow off the top of the weave room and the looms." In 1962 she began to work in the winding room at the North Henderson Mill and worked until she quit work in June 1969. She testified:
I first had breathing problems when I . . . worked in the weave room at [the North Henderson Mill]. I first remember when we were blowing off, we really were coughing and sucking in lint, a whole lot of lint. That would make me have a breathing problem. That was probably about 1960 I guess. I had breathing problems off and on the whole time at that time or after that time . . . .
Annie Mae Harrell quit work in order to look after her son who was ill, her husband having moved away and taken another job. She testified further:
Since I have stopped working in the mill, the activities I have been able to do on a daily basis are I did my housework as long as I could. Since 1977 I haven't done very much housework . . . There are other kinds of activities besides my housework that I sure can't do any more. I knit . . . . I could get out and work in the garden and work in the yard and all. I can't do it no more. Since 1977 I haven't done anything.
Dr. Ted R. Kunstling, a physician specializing in pulmonary diseases, testified he first saw Mrs. Harrell on 5 October 1979. He took a history, conducted a physical examination, made laboratory studies and examined test results available to him from other medical sources. He felt her medical history "indicates that she was unable to perform even light housework" and "is not capable of working in the mill." Mrs. Harrell has no work experience except in the cotton mill industry, and her incapacity to earn wages is not controverted.
Dr. Kunstling's studies indicated "an amount of irreversible pulmonary impairment that was present at the time of examination. "He attributed this impairment to a number of different lung diseases. X-rays revealed markings on the lung" consistent with pulmonary fibrosis . . . . Pulmonary fibrosis is a process of scarring which occurs in the lungs." Although "[i]t has a variety of causes," he testified "it cannot be the end results of long term exposure to cotton dust. I do not think the results of scars is from exposure to cotton dust."
In response to a hypothetical question, Dr. Kunstling testified further as follows:
Based upon these facts and upon your examination of the plaintiff and your testing, do you have an opinion satisfactory to yourself based upon a reasonable medical certainty as to whether or not her exposure to cotton dust in her employment could or might be a cause of her lung disease?
A: Yes, I do.
Q: What is that opinion?
A: I feel that there is an element of pulmonary impairment present which could have been contributed to by her cotton dust exposure.
Dr. Kunstling also testified:
I concluded that there were other factors in her history besides exposure to cotton dust that could have caused her problem. I feel like she has a pulmonary condition with pulmonary fibrosis and restrictive impairment which is coexisting with the amount of airway obstructive disease which is present. And that this is probably contributing to her pulmonary impairment to a certain extent. The etiology or the cause of this fibrosis is not known. And I can only state that fibrosis is a type of response which can't be correlated with her occupation. I believe there is some other causes for this. It is not uncommon for this type of disease to be present without there being a diminishable cause. In addition, she had others present: hypertension, and chronic rhinitis, and sinusitis.
"[A]ssessing the relative contribution of restrictive and obstructive diseases" to Mrs. Harrell's lung condition was "somewhat speculative" in Dr. Kunstling's judgment.
On cross-examination Dr. Kunstling testified "the vast majority of Mrs. Harrell's lung disease is restrictive in nature" but "she does have evidence of airway obstruction, and I believe this may be related to her cotton dust exposure and hence could be termed `byssinosis.'" Dr. Kunstling testified that Mrs. Harrell's "airway obstruction is something that may have been present from the time of her retirement from work to the present time" but that "the intervening process that has occurred has contributed significantly to her pulmonary impairment."
On redirect examination Dr. Kunstling testified, "Mrs. Harrell's obstructive lung disease may well have been caused by her exposure to cotton dust. I would say that she probably has obstructive impairment caused by cotton dust exposure."
With this evidence before it, the Commission, adopting the findings and conclusions of the Hearing Commissioner, made findings and conclusions as follows (paraphrased except where quoted):
All parties stipulated: When the employee allegedly contracted her occupational disease, they were subject to and bound by the provisions of the Workers' Compensation Act; the employment relationship existed between the worker and the defendant employer; Liberty Mutual Insurance Company was the compensation carrier on the risk; the worker last worked for defendant-employer on 28 June 1969; her average weekly wage covering the one-year period before the date on which she last worked was $95.62; and defendant-employer's textile mills processed cotton during the worker's term of employment there.
. . . .
3. Mrs. Harrell began to work at defendant's mill in Henderson in October 1959 where she was employed in the weave room. Her duties involved "filling batteries, weaving, smashing and cleanup activities" including blowing off the equipment by use of a compressed air hose. This mill processed cotton during Mrs. Harrell's employment. Dust accumulated to the extent that the looms were blown off two to three times weekly. At times Mrs. Harrell was required to be under cloth covering the looms while the looms were being blown off. Occasionally she would assist in the blow off operations "on an all-day basis."
. . . .
8. Dr. Ted Kunstling, a pulmonary expert and member of the Industrial Commission's Textile Occupational Disease Panel, saw Mrs. Harrell on 5 October 1979. He diagnosed her "as having pulmonary fibrosis (chronic restrictive lung disease) with moderate restrictive impairment as well as chronic obstructive lung disease with mild obstructive impairment. In Dr. Kunstling's opinion both conditions resulted "in permanent and irreversible pulmonary impairment in the range of 40 to 50 percent impairment of lung function" but he attributed the major element thereof to the fibrosis. Dr. Kunstling felt that Mrs. Harrell "is currently disabled from performing work with the exception of light work . . . and then only in a clean environment." In Dr. Kunstling's opinion Mrs. Harrell's "mild chronic obstructive lung disease, which he attributes to her occupational exposure to cotton dust, would not be significantly disabling in the absence of claimant's intervening pulmonary fibrosis which disease in his opinion is definitely not causally related to claimant's occupational exposure but rather is of unknown origin."
9. "As a result of her exposure to respirable cotton dust while employed within the weave and winding rooms of defendant-employer's textile mill claimant has contracted chronic obstructive lung disease (byssinosis) with evidence of permanent and irreversible airway obstruction. Plaintiff has contracted an occupational disease."
10. "Although at the time of her retirement claimant retained permanent and irreversible pulmonary impairment as a result of her occupational obstructive lung disease, she was not disabled (from work) as a result of this or any other physical condition until the year 1977, at which time she became disabled (from work) as a result of and following contracting non-occupational pulmonary fibrosis. The significant aspect of claimant's current pulmonary disability is as a result of her restrictive lung disease (pulmonary fibrosis) which arose independently of and following her voluntary retirement from the defendants' employ in 1969."
11. "At the time of her retirement and as a result of the aforenamed occupational disease, claimant has a permanent disability in that she has permanent injury to two important internal organs; to wit: her lungs, in the form of permanent and irreversible loss of lung function. It can be reasonably presumes that the claimant has suffered diminution of her future earning power by reason of such loss." Upon the foregoing findings of fact the Commission made the following conclusions of law:
1."Plaintiff has contracted chronic obstructive lung disease (byssinosis) with permanent and irreversible airway obstruction as a result of exposure to cotton dust in her employment with defendant employer. This disease is compensable under the provisions of G.S. 97-53(13) as it existed prior to its amendment in 1971. Taylor v. J. P. Stevens and Co., Opinion filed on May 6, 1980 by the N.C. Supreme Court."
2. "As a result of the occupational disease giving rise hereto plaintiff has a permanent partial loss of both her lungs and is entitled to compensation in the amount of $4,000.00 therefor. G.S. 97-31(24) as it existed prior to its amendment in 1969. Arrington v. Stone and Webster Engineering Corp., 264 N.C. 38, 140 S.E.2d 759 (1965)."
Upon the foregoing findings of fact and conclusions of law the Commission made an award of $4,000.00 "for partial loss of lung function," attorney's fees and costs to Mrs. Harrell.
II.
Appellant's primary contention is that the Industrial Commission erred in failing to award benefits for disability resulting from occupational disease under N.C. Gen. Stat. 97-52, 97-29. The Court of Appeals held the record lacked sufficient evidence to find that occupational disease caused any of Mrs. Harrell's incapacity to earn wages. It based that holding, in part, upon the fact that the chronic obstructive lung disease component of her pulmonary condition, the only component in her condition linked to cotton dust exposure, resulted not only from occupational exposure but also from other nonoccupational factors and "there is insufficient evidence from which the obstructive component . . . could be allocated between occupational and non-occupational causes." 56 N.C. App. at 701, 289 S.E.2d at 848 (1982). The Court of Appeals, in other words, set aside the Commission's finding that Mrs. Harrell's obstructive lung disease was an occupational disease.
Since the Court of Appeals had this case before it, we have decided Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 301 S.E.2d 359 (1983). Rutledge held obstruction caused by chronic obstructive lung disease need not be apportioned between occupational and nonoccupational causes and a claimant may recover the entire disability resulting from such obstruction so long as the occupation-related cause was a significant causal factor in the disease's development. Id at 101, 301 S.E.2d at 369-70. In this case there is sufficient evidence from which the Commission could have found that cotton dust exposure was a significant causal factor in the development of Mrs. Harrell's obstructive lung disease. Dr. Kunstling testified: "She probably has obstructive impairment caused by cotton dust exposure" and "I feel there is an element of pulmonary impairment present which could have been contributed to by her cotton dust exposure." The record, therefore, contains adequate support for the Industrial Commission's conclusion that Mrs. Harrell's entire obstructive lung disease was an occupational disease.
Although the obstructive component of Mrs. Harrell's condition need not be apportioned between occupational and nonoccupational causes, the question remains whether the evidence is sufficient to find that her obstructive lung disease was the cause of any of her wage-earning disability. The Commission found as a fact that "[i]t can be reasonably presumed that the claimant has suffered diminution of her future earning power" as a result of loss of lung function caused by occupational obstructive lung disease. This finding would seem to be supported by Dr. Kunstling's testimony quoted above that obstructive impairment caused by cotton dust exposure was an element in Mrs. Harrell's pulmonary condition.
The Commission, however, made a contradictory finding as to the cause of Mrs. Harrell's disability:
[Mrs. Harrell] became disabled (from work) as a result of and following contracting non-occupational pulmonary fibrosis. The significant aspect of claimant's current pulmonary disability is as a result of her restrictive lung disease (pulmonary fibrosis) which arose independently of and following her voluntary retirement from the defendants' employ in 1969.
This finding is supported by other testimony of Dr. Kunstling that Mrs. Harrell's disease was mostly restrictive in nature.
In the face of these inconsistent fact findings, we think the proper course is to remand the case to the Commission to determine whether occupational or nonoccupational disease was the cause of Mrs. Harrell's disability. If the medical evidence would support a finding that her occupational, obstructive lung disease partially contributed to her disability and her nonoccupational, restrictive lung disease independently and not aggravated by occupational disease also partially contributed to her disability, she would be entitled to compensation for so much of her wage-earning incapacity as was attributable to her occupational disease. See Rutledge, 308 N.C. at 100, 301 S.E.2d at 369; Morrison v. Burlington Industries, 304 N.C. 1, 14, 282 S.E.2d 458, 467 (1981). In this case, however, the medical evidence does not permit any reasonable apportionment of her disability between occupational and nonoccupational disease. Dr. Kunstling characterized the task of "assessing the relative contribution of restrictive and obstructive elements" of Mrs. Harrell's disease as "speculative." Because the evidence will permit no such apportionment, plaintiff is entitled to an award for her entire disability if her occupational disease was a substantial and material factor in bringing about that disability. Anderson v. Northwestern Motor Co., 233 N.C. 372, 375, 64 S.E.2d 265, 267 (1951); Vause v. Vause Farm Equipment Co., 233 N.C. 88, 92, 63 S.E.2d 173, 176 (1951); see 1 Larson, Workmen's Compensation Law 12-20 (1985) (nonoccupation-related disease of employee does not disqualify a claim if employment combined with disease to produce disability).
III.
Even if the Industrial Commission determines that Mrs. Harrell's wage-earning disability was not substantially due to occupational disease, the Commission may consider awarding compensation under N.C. Gen. Stat. 97-31(24). G.S. 97-31 is a schedule of losses for which compensation is payable even if a claimant does not demonstrate loss of wage-earning capacity. Losses included in the schedule are conclusively presumed to diminish wage-earning ability. Perry v. Hibriten Furniture Co., 296 N.C. 88, 94-95, 249 S.E.2d 397, 401 (1978); Watts v. Brewer, 243 N.C. 422, 424, 90 S.E.2d 764, 767 (1956); Loflin v. Loflin, 13 N.C. App. 574, 577, 186 S.E.2d 660, 662, cert. denied, 281 N.C. 154, 187 S.E.2d 585 (1972). 31 Defendants argue no compensation may be awarded under G.S. 97-31 unless claimant suffers disablement or death as a result of occupational disease. They rely upon G.S. 97-52 which provides, "Disablement or death of an employee resulting from occupational disease . . . shall be treated as the happening of an injury by accident" within the meaning of the Workers' Compensation Act. N.C. Gen. Stat. 97-52 (1979) (emphasis provided). Disablement (or death), they argue, is a condition that must occur before G.S. 97-52 makes occupational diseases compensable.
Defendant's argument is based on an overly technical reading of the statute. The purpose of G.S. 97-52 is to enable a worker to recover for disability caused by occupational disease under G.S. 97-29. The words "disablement or death" merely describe a condition that must occur before recovery may be had under G.S. 97-29. They do not predicate recovery under G.S. 97-31 upon disability. Recovery under that section, as noted above, is permitted regardless of actual ability or inability to earn wages. The obvious intent of the legislature in enacting G.S. 97-52 was to permit and not restrict recovery for occupational diseases. G.S. 97-52, therefore, does not require that disability be shown as a condition to recovery under the schedule for occupational disease.
The Court of Appeals, nonetheless, reversed the Commission's award under G.S. 97-31(24) and held that injury caused by occupational disease does not fall within the scope of that section. G.S. 97-31(24) provides:
In case of the loss of or permanent injury to any important external or internal organ or part of the body for which no compensation is payable under any other subdivision of this section, the Industrial Commission may award proper and equitable compensation not to exceed ten thousand dollars ($10,000).
N.C. Gen. Stat. 97-31 (1979) (emphasis added). The Court of Appeals reasoned that lung damage caused by occupational disease could not be a permanent "injury" within the meaning of G.S. 97-31(24) because injury is defined in G.S. 97-2(6) so as not to include injury caused by occupational disease. Although G.S. 97-52 specifies that occupational disease resulting in "disablement" satisfies the injury requirement, that section does not, in cases of nondisabling disease, prevent the exclusion of disease from the definition of injury. Because, in its judgment, Mrs. Harrell's disease was not disabling, her disease was not an injury and G.S. 97-31(24) could not apply.
We need not decide whether the Court of Appeals is correct that "injury" caused by occupational disease is outside the scope of G.S. 97-31. The Industrial Commission did not make an award to Mrs. Harrell under G.S. 97-31(24) for "injury" to her lungs but for partial "loss of both her lungs."
The only question that need concern us is whether "loss" as used in G.S. 97-31(24) means loss of use. This question is one of legislative intent. We believe the legislature intended for G.S. 97-31 to apply to occupational disease and hold that loss as used in G.S. 97-31(24) includes loss of use.
All the organs of the body have a function and when an organ ceases functioning in whole or in part, it is a loss to the body as surely as if it or that part which no longer functions were physically detached. In Mrs. Harrell's case, it is hard to imagine that the removal of that part of her lungs affected by occupational disease could have any greater debilitating effect upon her than the loss of the use of those affected parts. She testified:
Since 1977 I haven't done very much housework . . . . There are other kinds of activities besides my housework that I sure can't do anymore . . . . I could get out and work in the garden and work in the yard and all. I can't do it no more. Since 1977 I haven't done anything.
Our interpretation that loss means loss of use is not novel nor is it inconsistent with the compensation scheme enacted by the legislature. The legislature has provided in G.S. 97-31(19) that with respect to the extremities and the optic organ, loss of use "shall be considered as the equivalent of loss." N.C. Gen. Stat. 97-31(19) (1979).
If loss does not mean loss of use in G.S. 97-31(24) and the Court of Appeals is correct that "injury" as used in that same section does not include injury caused by disease, we will have foreclosed the schedule as a means of compensating victims of occupational disease. We do not believe the legislature intended such a result. G.S. 97-59 requires an employer to provide medical treatment "in cases in which awards are made for disability or damage to organs as a result of occupational disease. . . ." N.C. Gen. Stat. 97-59 (Supp. 1983) (emphasis provided). The legislature must have intended for occupational disease to be compensable under the schedule or it would not have expressly provided that medical treatments be provided both in cases of disability and in cases of damage to organs. Furthermore, we are mindful that the legislature intends for the Workers' Compensation Act to be construed liberally in favor of the injured worker to the end that its benefits not be denied upon technical, narrow or strict interpretation. Cates v. Hunt Construction Co., 267 N.C. 560, 148 S.E.2d 604 (1966). Finally, when confronted with this issue on another occasion, the Court of Appeals also decided the legislature intended G.S. 97-31 to apply in occupational disease cases. Cook v. Bladenboro Cotton Mills, 61 N.C. App. 562, 300 S.E.2d 852 (1983); see also Priddy v. Cone Mills, 58 N.C. App. 720, 294 S.E.2d 743 (1982); Hundley v. Fieldcrest Mills, 58 N.C. App. 184, 292 S.E.2d 766 (1982) (upholding awards in occupational disease cases under the schedule).
We hold, therefore, an award for partial loss of lung function does fall within the scope of G.S. 97-31(24).
In summary, the Industrial Commission, on remand of this case, may find that claimant had a disability resulting from an occupational disease and make an award under G.S. 97-52 and 97-29. There is also evidence from which the Commission could find that no disability resulted from an occupational disease. It may then award compensation under 97-31(24) for partial loss of lungs. It cannot, however, make an award under both sections because compensation under G.S. 97-31 is "in lieu of all other compensation." N.C. Gen. Stat. 97-31 (1979). See Fleming v. K-Mart Corp., 312 N.C. 538, 324 S.E.2d 214 (1985); West v. Bladenboro Cotton Mills, 62 N.C. App. 267, 302 S.E.2d 645 (1983); Cook v. Bladenboro Cotton Mills, supra.
The decision of the Court of Appeals is reversed and the case remanded to that court for further remand to the Industrial Commission so that it may conduct further proceedings consistent with this opinion.
Reversed and remanded.
Justice BILLINGS did not participate in the consideration or decision of this case.