Webb v. Pauline Knitting Industries

336 S.E.2d 645 (1985)

Myrtle S. WEBB, Employee, Plaintiff, v. PAULINE KNITTING INDUSTRIES (Formerly Known As Macanal Spinning Mills), Employer, The Travelers Insurance Company, Carrier, and/or Aetna Casualty & Surety Insurance Company, Carrier, and/or Federal Insurance Company, Carrier, Defendants.

No. 8510IC579.

Court of Appeals of North Carolina.

December 3, 1985.

*646 Lore & McClearen by R. James Lore, Raleigh, for plaintiff.

Boyle, Alexander, Hord & Smith by B. Irvin Boyle, Charlotte, for defendants-appellees Pauline Knitting Industries and The Travelers Ins. Co.

Underwood, Kinsey & Warren, P.A. by John H. Northey III, Charlotte, for defendant-appellee The Aetna Casualty and Surety Ins. Co.

Hedrick, Eatman, Gardner & Kincheloe by Edward L. Eatman, Jr., Charlotte, for defendant-appellee Federal Ins. Co.

WELLS, Judge.

Plaintiff contends that the Commission's award was entered under misapprehensions of law and that this case should be remanded for further consideration as to whether plaintiff is entitled to compensation for permanent and total disability under *647 N.C.Gen.Stat. § 97-29 (Cum.Supp. 1983). We agree and reverse and remand.

In summary, the Commission found that plaintiff has chronic obstructive pulmonary disease caused in part by her exposure to respirable cotton dust during her employment; that plaintiff has a respiratory impairment of a moderate nature; that as a result of her chronic obstructive lung disease, plaintiff has sustained permanent damage to each of her lungs; that this impairment is not sufficient to render plaintiff incapable of performing types of employment which do not require very strenuous activity or exposure to cotton dust (emphasis supplied); and that plaintiff had not proven that her exposure to respirable cotton dust had resulted in any incapacity to earn wages in her employment with defendant Pauline Knitting Industries or any other employment. The Commission's findings do not address the evidence that plaintiff's education, age and experience suggest that she is probably not capable of earning wages in any employment which does not require substantial physical exertion. These findings also fly directly in the face of the medical evidence which consistently showed plaintiff to be incapable of performing physically exertive labor.

Under Little v. Food Service, 295 N.C. 527, 246 S.E.2d 743 (1978) and its progeny, this case must be remanded for appropriate findings and conclusions of plaintiff's capacity to earn wages in employment for which she may be qualified in the light of her age, education and experience.

Upon necessary and appropriate findings and conclusions, plaintiff may be awarded either disability compensation under G.S. 97-29 and 97-52 or compensation for permanent injury to her lungs under G.S. 97-31 (24). See Harrell v. Harriett & Henderson Yarns, ___ N.C. ___, 336 S.E.2d 47 (1985).

Before leaving the issue of plaintiff's disability, we deem it appropriate to note that in considering that issue, the Commission was apparently influenced by its findings that at the time of her leaving work because of an accident in 1979, plaintiff was not prevented from working because of lung disease and that plaintiff had sought employment since her accident. We conclude that these findings have little, if any, bearing on the question of plaintiff's present ability to earn wages in employment for which she is qualified.

Plaintiff also contends that the Commission erred in the award of her medical expenses. We perceive that this question will be appropriately resolved on remand.

Plaintiff's other arguments are without merit and are overruled.

Defendants Aetna Casualty and Insurance Company and Federal Insurance Company have moved to dismiss on the grounds that they were not the carriers during plaintiff's last injurious exposure. We agree and the appeal is dismissed as to these defendants.

Reversed and remanded.

ARNOLD and PARKER, JJ., concur.