Mabe v. North Carolina Granite Corporation

189 S.E.2d 804 (1972)

Fred W. MABE, Employee, Plaintiff, v. The NORTH CAROLINA GRANITE CORPORATION, Employer, Self-Insurer, Defendant.

No. 7217IC444.

Court of Appeals of North Carolina.

July 12, 1972.

*806 Hiatt & Hiatt by David L. Hiatt, Mount Airy, for plaintiff appellee.

Gardner & Gardner by John C. W. Gardner, Mount Airy, for defendant appellant.

GRAHAM, Judge.

Defendant does not dispute the fact plaintiff suffers some disability from silicosis contracted while exposed to silica during his employment by defendant. It says, however, that plaintiff is only partially incapacitated by his condition, and that the Commission erred in finding his disability to be total.

The term "disablement" as applied to cases of asbestosis and silicosis, "means the event of becoming actually incapacitated because of asbestosis or silicosis to earn, in the same or any other employment, the wages which the employee was receiving at the time of his last injurious exposure.. . ." G.S. § 97-54

In paragraphs 4 and 5 of the order, the Commission found that plaintiff, age 61, has a fifth grade education and his occupational abilities extend only to jobs requiring hard labor; and that, "he is unable to perform hard labor due to shortness of breath resulting from silicosis." These findings of fact are not the subject of any exception and are therefore binding upon appeal. Pratt v. Upholstery Co., 252 N.C. 716, 115 S.E.2d 27; Jacobs v. Manufacturing Co., 229 N.C. 660, 50 S.E.2d 738; G.S. 97-86. Moreover, we find these findings supported by competent evidence. "If the findings of fact of the industrial commission are supported by competent evidence and are determinative of all the questions at issue in the proceeding, the court must accept such findings as final truth, and merely determine whether or not they justify the legal conclusions and decision of the commission." Thomason v. Cab Co., 235 N.C. 602, 605, 70 S.E.2d 706, 708.

Defendant excepts to paragraph 7 of the order wherein it is stated, "[c]laimant's incapacity for work resulting from silicosis is total. . . ." It also excepts to the following conclusion: "Due to claimant's having been diagnosed as having Silicosis, Grade I, the Advisory Medical Committee rated claimant 40 percent disabled. However, this 40 percent rating coupled with claimant's education and experience which limit him to hard labor employment, which he cannot perform due to shortness of breath, renders claimant totally incapacitated `. . . because of . . . silicosis to earn, in the same or any other employment, the wages which the employee was receiving at the time of his last injurious exposure. . . .'"

The Commission's findings of fact are sufficient to establish that plaintiff is fully incapacitated because of silicosis to earn wages through work at hard labor, which is the only work he is qualified to do by reason of his age and education. In our opinion, these findings, which are not challenged by exception, justify the Commission's conclusion that the plaintiff is totally incapacitated because of silicosis to earn, in the same or any other employment, the wages he was earning at the time of his last injurious exposure.

"Under the Workmen's Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money." Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E.2d 857. The question is what effect has the disease had upon the earning capacity of this particular plaintiff; not what effect a like physical impairment would have upon an employee of average age and intelligence. The effect on this particular plaintiff is that he has been rendered totally incapacitated to earn any wages. To say that this might not be the case were plaintiff younger or better educated *807 does not alter in the slightest the incapacity to earn which he actually suffers because of silicosis.

Defendant contends that elements of age and poor education are factors which are beyond the control of an employer and cannot be considered in determining an employee's disability. The answer to this is that an employer accepts an employee as he is. If a compensable injury precipitates a latent physical condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable and no attempt is made to weigh the relative contribution of the accident and the pre-existing condition. 2 Larson, Workmen's Compensation Law, § 59.20, p. 88.109. By the same token, if an industrial disease renders an employee actually incapacitated to earn any wages, the employer may not ask that a portion of the disability be charged to the employee's advanced age and poor learning on the grounds that if it were not for these factors he might still retain some earning capacity.

Our decision here is not in conflict with the recent case of Dudley v. Motor Inn, 13 N.C.App. 474, 186 S.E.2d 188. In that case plaintiff contended she was entitled to compensation for total incapacity under G. S. § 97-29 since the evidence indicated that a partial loss of use in her left hand rendered her unable to work as a cook, which was the only work she was experienced to do. This Court held to the contrary, saying plaintiff's compensation was controlled by the schedule set forth in G.S. § 97-31(12) and (19) and by the express provision of G.S. § 97-31 to the effect compensation in accordance with the schedule "shall be in lieu of all other compensation." In the instant case the provisions of G.S. §§ 97-54 and 97-61.6 are controlling and the Commission correctly applied the provisions of these sections.

Affirmed.

MORRIS and VAUGHN, JJ., concur.