Sebastian v. Mona Watkins Hair Styling

251 S.E.2d 872 (1979)

Betty Jean SEBASTIAN, Employee, v. MONA WATKINS HAIR STYLING, Employer, Nationwide Mutual Insurance Company, Carrier.

No. 7810IC235.

Court of Appeals of North Carolina.

February 20, 1979.

*874 Blanchard, Tucker, Twiggs & Denson by R. Paxton Badham, Jr., Raleigh, for plaintiff-appellant.

Young, Moore, Henderson & Alvis by Charles H. Young, Jr., Raleigh, for defendants-appellees.

HEDRICK, Judge.

The Industrial Commission found that plaintiff's skin condition was compensable as an occupational disease under G.S. § 97-53(13) and awarded her medical expenses plus temporary total disability benefits for a period of thirty days. Defendants did not challenge this conclusion or award and thus no question is presented with respect to it. The Commission, in its Order, stated that "plaintiff has failed to show that her disability after January 31, 1977, was caused by her occupational disease." Plaintiff has excepted to the conclusion based thereon that "[p]laintiff has no compensable disability after January 30, 1977." Plaintiff argues that the "term `disability' signifies an impairment of wage earning capacity rather than a physical impairment" and that she "has not been able to work [as a hair stylist] or to earn the equivalent wage;" consequently, she continues to have a compensable disability. We disagree.

Plaintiff asserts that the issue is "how to compute damages accruing to a skilled employee who, as a result of an occupational disease, is not able to work at her skill, but is otherwise healthy and able to work at a non-skilled job." This formulation erroneously assumes the crucial question to be determined: whether plaintiff's incapacity to earn wages is the "result of an occupational disease."

Pursuant to G.S. § 97-53, only certain specifically enumerated "diseases and conditions. . . shall be deemed to be occupational diseases," among which is "(13) Any disease . . . which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment . . ." By virtue of G.S. § 97-52, "[d]isablement. . . of an employee resulting from an occupational disease described in G.S. § 97-53 shall be treated as the happening of an injury by accident" and is compensable under the Workmen's Compensation Act. (Emphasis added.) G.S. § 97-54 provides that in "cases of occupational disease `disablement' shall be equivalent to `disability' as defined in G.S. 97-2(9)." The definition of "disability" in G.S. § 97-2(9) is "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." (Emphasis added.)

From the above it is clear that in order to be compensable, plaintiff's "disability" must result from an occupational disease. In the present case, there is no evidence whatsoever that subsequent to 31 January 1977 plaintiff's incapacity to earn wages was the result of an occupational disease; rather, it was the result of her personal sensitivity to chemicals used in her work. We do not believe that the purpose of the Workmen's Compensation Act is to provide benefits for inability to perform a particular type of work due to an individual's susceptibility to disease from that work. The underlying purpose of the Act "is to provide compensation for workmen who suffer disability by accident arising out of and in the course of their employment [or from] those diseases or abnormal conditions. . . the causative origin of which is occupational in nature." Henry v. A. C. Lawrence Leather Co., 234 N.C. 126, 127-28, 66 S.E.2d 693, 694 (1951).

Plaintiff relies heavily on Mabe v. N. C. Granite Corp., 15 N.C.App. 253, 189 S.E.2d 804 (1972). In that case, the claimant had worked as a stonecutter with thirty to thirty-five years of experience and was forced to quit because he contracted silicosis from his exposure to silica during his employment. Although he had only a forty percent medical disability, the Commission *875 found him "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." 15 N.C.App. at 255, 189 S.E.2d at 806. In that case, it was clear that plaintiff's incapacity to earn wages was the result of his having silicosis, which in turn was a result of his work. Furthermore, there is a radical difference between silicosis and the skin condition of plaintiff in the present case. In Singleton v. D. T. Vance Mica Co., 235 N.C. 315, 324, 69 S.E.2d 707, 713 (1952), the Court stated:

Silicosis is an inflammatory disease of the lungs due to the inhalation of particles of silicon dioxide. It is incurable and is one of the most disabling occupational diseases because it makes the lungs susceptible to other infection, particularly tuberculosis. According to the textbook writers, it has been definitely determined that the removal of a man, who has silicosis, from silica exposure, does not stop the progress of the disease at once, but that fibrotic changes continue to develop for another one or two years.

In contrast, plaintiff's skin condition had completely cleared up within one month of her terminating her employment as a hair stylist. While it may be true that plaintiff's skin disease could recur if she returned to her previous job, there is no evidence of any continuing disability as a result of a disease contracted in the course of employment as is the case with silicosis. Therefore, she is not entitled to disability compensation payments for her susceptibility to the skin disease.

For the reasons stated above, the Order appealed from is affirmed.

Affirmed.

VAUGHN and CLARK, JJ., concur.