Opinion
No. 8510IC276
Filed 17 December 1985
Master and Servant 68 — workers' compensation — chronic obstructive lung disease — insufficient evidence of disability The evidence was insufficient to support a finding that plaintiff textile worker is disabled from chronic obstructive lung disease where plaintiff showed only that he was not earning the wages he was earning before his injury at the time of his compensation hearing, and the undisputed medical evidence showed that plaintiff is capable of work involving a clean environment, moderate activity and manual dexterity. N.C.G.S. 97-2 (9).
APPEAL by defendant from the Industrial Commission. Order of the Full Commission entered 17 September 1984. Heard in the Court of Appeals 16 October 1985.
Lore McClearen, by R. James Lore, for plaintiff, appellee.
Teague, Campbell, Dennis Gorham, by George W. Dennis, III, and Linda Stephens, for defendant, appellant.
Judge BECTON dissenting.
Judge PARKER concurring in result.
Plaintiff filed a workers' compensation claim on 4 May 1982. From an opinion and award for the Full Commission by Commissioner Charles A. Clay granting plaintiff compensation for permanent partial disability, defendant appealed.
Appellant, Linn-Corriher Corporation, contends that the evidence in the record does not support the findings of fact underlying the conclusion of law that plaintiff is disabled. In order to support a conclusion of disability, the Commission must find:
(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual's incapacity to earn was caused by plaintiff's injury. . . . Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).
In passing upon issues of fact, the Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. The findings of the Industrial Commission are conclusive on appeal when supported by competent evidence even when there is evidence to support a contrary finding. Id.
The Industrial Commission heard evidence which tends to show the following: Plaintiff, Ralph Hendrix, is a 46 year old man with an eighth grade education who is unable to read a newspaper or spell. He began working in cotton mills at age sixteen. In January 1981, plaintiff contracted pneumonia and missed over three weeks of work with Linn-Corriher Corporation. He was laid off by Linn-Corriher Corporation pursuant to a company policy of terminating the employment of any employee who misses more than twelve days work in a one year period. Mr. Hendrix testified as to his attempts to find work after being laid off. He testified that he had a job at three mills before taking the "breathing test," but after he took the tests, he did not have a job anymore.
The uncontradicted medical testimony of Dr. Douglas Kelling of the North Carolina Textile Occupational Disease Panel indicates that plaintiff suffers from a mild case of employment related chronic obstructive lung disease, he has a twenty to thirty percent lung impairment, and he should not be exposed to dust or fumes. Plaintiff himself reported that "I never had shortness of breath so bad that I couldn't do my job," and that he could not list any activities outside of work that he could not do. Dr. Kelling testified that plaintiff is physically capable of certain types of jobs. Since defendant laid off plaintiff, plaintiff has held a construction job and a restaurant job.
Plaintiff's entitlement to compensation under the Workers' Compensation Act is measured by his capacity or incapacity to earn wages. Ashley v. Rent-A-Car Co., 271 N.C. 76, 155 S.E.2d 755 (1967). "Disability" under Chapter 97 means an impairment in the employee's wage-earning capacity because of injury, not merely a physical impairment. G.S. 97-2 (9); Sebastian v. Hair Styling, 40 N.C. App. 30, 251 S.E.2d 872, disc. rev. denied, 297 N.C. 301, 254 S.E.2d 921 (1979).
The evidence in the present case is strikingly similar to the evidence in Lucas v. Burlington Industries, 57 N.C. App. 366, 291 S.E.2d 360 (1982). The 62 year old plaintiff in Lucas had "no skills other than those . . . [she] learned by virtue of her occupation in the mills since age 14." The plaintiff in Lucas was capable of work involving moderate activity and a clean environment, and she sought the kinds of employment she was capable of performing, but was unable to secure such employment before the date of her compensation hearing. We held in Lucas that these facts supported a finding of no disability.
The workers' compensation system is not an unemployment insurance program. Before the plaintiff may receive compensation, he must show that he is not capable of earning the same wages he had earned before his injury. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 687 (1982). Merely showing that plaintiff is not earning the same wages after his injury than before is insufficient.
In the present case, plaintiff has shown that he was not earning the wages he was earning before his injury at the time of his compensation hearing. However, the evidence produced at the compensation hearing is insufficient to support a finding that plaintiff is incapable of earning the same wages. In fact, the undisputed medical evidence is that plaintiff is capable of work involving a clean environment, moderate activity and "certainly anything requiring manual dexterity." Therefore the opinion and award of the Industrial Commission is reversed.
Reversed.
Judge PARKER concurs in the result.
Judge BECTON dissents.