{ "id": 8525592, "name": "SHELBY TYNDALL, Plaintiff, Employee v. WALTER KIDDE CO., Employer and NATIONAL UNION, Carrier, Defendants", "name_abbreviation": "Tyndall v. Walter Kidde Co.", "decision_date": "1991-05-07", "docket_number": "No. 9010IC815", "first_page": "726", "last_page": "733", "citations": [ { "type": "official", "cite": "102 N.C. App. 726" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "40 N.C.App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548473 ], "opinion_index": -1, "case_paths": [ "/nc-app/40/0030-01" ] }, { "cite": "373 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "the ultimate question is whether the claimant can obtain the job" } ], "opinion_index": 0 }, { "cite": "323 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562113, 2566065, 2560632, 2561049, 2561822 ], "year": 1988, "pin_cites": [ { "parenthetical": "the ultimate question is whether the claimant can obtain the job" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0171-04", "/nc/323/0171-03", "/nc/323/0171-01", "/nc/323/0171-05", "/nc/323/0171-02" ] }, { "cite": "368 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "390", "parenthetical": "the ultimate question is whether the claimant can obtain the job" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524683 ], "year": 1988, "pin_cites": [ { "page": "400", "parenthetical": "the ultimate question is whether the claimant can obtain the job" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0397-01" ] }, { "cite": "398 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "682", "parenthetical": "after claimant meets initial burden, burden on employer to \"show not only that suitable jobs are available, but also that the plaintiff is capable of getting one ...\"" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527213 ], "year": 1990, "pin_cites": [ { "page": "33", "parenthetical": "after claimant meets initial burden, burden on employer to \"show not only that suitable jobs are available, but also that the plaintiff is capable of getting one ...\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0024-01" ] }, { "cite": "370 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "422", "parenthetical": "court in Sebastian was unconvinced that claimant's \"personal sensitivity\" met the definition of an occupational disease" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 45", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524229 ], "year": 1988, "pin_cites": [ { "page": "50", "parenthetical": "court in Sebastian was unconvinced that claimant's \"personal sensitivity\" met the definition of an occupational disease" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0045-01" ] }, { "cite": "254 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "claimant's incapacity was result of personal sensitivity not occupational disease" } ], "opinion_index": 0 }, { "cite": "297 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569664, 8569697, 8569728, 8569638, 8569751 ], "year": 1979, "pin_cites": [ { "parenthetical": "claimant's incapacity was result of personal sensitivity not occupational disease" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0301-02", "/nc/297/0301-03", "/nc/297/0301-04", "/nc/297/0301-01", "/nc/297/0301-05" ] }, { "cite": "251 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "claimant's incapacity was result of personal sensitivity not occupational disease" } ], "opinion_index": 0 }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "684" }, { "page": "684", "parenthetical": "if competent evidence in the record to support findings, appellate court is bound" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "596" }, { "page": "595" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "345 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "317 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4779801 ], "year": 1986, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0179-01" ] }, { "cite": "195 Colo. 163", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 4554189 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/colo/195/0163-01" ] }, { "cite": "40 N.C.App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548473 ], "weight": 2, "pin_cites": [ { "parenthetical": "claimant's incapacity was result of personal sensitivity not occupational disease" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0030-01" ] } ], "analysis": { "cardinality": 689, "char_count": 14918, "ocr_confidence": 0.751, "pagerank": { "raw": 5.972621426351498e-07, "percentile": 0.9538500121049528 }, "sha256": "5da01401ab98a1770b12f23ac566b7c27603e74e7cc3ce1647bf1089aaf59691", "simhash": "1:b8287f5a5bcac96a", "word_count": 2331 }, "last_updated": "2023-07-14T21:20:04.252791+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Wynn concur." ], "parties": [ "SHELBY TYNDALL, Plaintiff, Employee v. WALTER KIDDE CO., Employer and NATIONAL UNION, Carrier, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nShelby Tyndall (Claimant) appeals from an \u201cOpinion and Award\u201d of the Industrial Commission denying her claim for compensation.\nThe undisputed facts reveal that the Claimant in 1983 received a job with Walter Kidde Co. (Employer) as a machinist \u201cC\u201d \u201cand with time and experience, became elevated to the position of machinist \u201cB\u201d at $8.51 per hour.\u201d The findings of fact adopted by the Commission state in part:\n4. [Employer]. . . manufactures fire control systems. Many of the parts are small and intricate. Precision gauges are used to measure these parts. As a part of [Claimant]\u2019s duties she worked with machines which used cutting oils to lubricate and cool the tools in the metal process. The oil was applied by a spray device when a drill press was used. On the larger machines that were involved in several operations, a cooling system was in place that sprayed the cooling liquid from all directions on the part as well as the tool. A drain system is installed to catch the excess coolant that splashes off the part and recycles it through the cooling oil system.\n5. Not only [Claimant], but other workers would often get this cooling oil on their hands or body as a necessary part of their job duties. Solcut 50 was a water-soluble coolant used in the machine shop. Also, a blue Monroe cooling solution was used in the machine shop as well. Different machines used different cooling solutions. Some used cutting oils.\n6. In the spring of 1987, [Claimant] began to notice that she was developing dermatitis on her hands and arms. This rash looked like poison oak or ivy, and caused an itching sensation. Small blisters or bumps developed.\nThe Claimant sought treatment from her family doctor and was referred to Dr. Edward Burton (Dr. Burton), a Raleigh dermatologist. Dr. Burton determined that Claimant had \u201ca chronic hand eczema which seems to be definitely accentuated by chemical exposure at work and is greatly improved when the patient ceases to work.\u201d Dr. Burton told Claimant that if she continued \u201cto be exposed to these chemicals she [could] . . . expect to continue to have trouble with her hands probably for an indefinite period of time.\u201d Dr. W. Stacy Miller (Dr. Miller) also diagnosed Claimant as having a \u201cchronic eczema\u201d which he determined to be \u201crelated to chemicals she comes in contact with at work.\u201d Dr. Miller performed some tests on Claimant which revealed \u201cpositive skin test reactions to the blue Monroe and undiluted Solcut 50 solutions.\u201d Dr. Miller advised that Claimant \u201cshould not come into contact with these chemicals.\u201d He concluded that Claimant was \u201cfully capable of working in another capacity where exposure to these chemicals will not be necessary.\u201d At some point after Claimant was examined by Dr. Miller and Dr. Burton, Claimant was told by Employer that there was a machinist \u201cC\u201d position open and Claimant requested a transfer to this position. On 1 September 1987, Claimant began working as a machinist \u201cC\u201d and was paid at the rate of $6.98 per hour. This work did not expose her to the irritating chemicals and cool\u00e1nts that she had been exposed to as a machinist \u201cB.\u201d In April, 1989, Claimant quit her job with Employer and began working at the Johnston County Alcohol and Substance Abuse Facility earning $6.01 per hour. There is no evidence in the record that Claimant had \u201cfurther experience of dermatitis after September 1, 1987 when her exposure\u201d to blue Monroe and Solcut 50 ceased.\nEmployer offered the testimony of Joseph 6. Kearney (Kearney) who testified that he specialized in \u201cjob evaluation: wage and salary administration and benefit analysis and compensation.\u201d He further stated that his work involved the \u201ccollecting of data and providing data in conjunction with compensation surveys and on the status of the labor market.\u201d He admitted that he was not an expert in the field of vocational evaluations. Kearney was accepted by the trial court as \u201can expert in labor market analysis with particular emphasis on job analysis and evaluation and compensation analysis.\u201d Kearney was asked on direct examination for his opinion as to whether Claimant, with her experience and qualifications, \u201cwould have the ability and opportunity to contract a job [in the area] paying a wage of at least $8.50 per hour\u201d which did not expose her to \u201cthe Solene Solcut 50 cutting oil type substances.\u201d Claimant objected to the question on the ground that the question was outside \u201cthe range of [Kearney\u2019s] . . . expertise\u201d and because Kearney did not do \u201cvocational assessments with respect to [individuals] ...\u201d regarding that individual\u2019s capabilities and vocational potential. The trial court overruled the objection. Kearney testified that there were jobs available in the immediate area for persons with the experience of Claimant which would not have involved exposure to \u201cSolcut 50 cutting oil type substances\u201d and that those jobs paid at least $8.50 to $9.00 per hour. Claimant presented no evidence that she sought any employment at any place \u201cwhere her extensive machinist skills and experience might [have been] . . . transferred.\u201d\nAt the hearing before the Industrial Commission on Claimant\u2019s claim, the parties stipulated that Claimant contracted an occupational disease, namely dermatitis, caused by a chemical which Claimant came into contact with in the course and scope of her employment with Employer.\nThe Commission determined that Claimant was not entitled to compensation for two distinct reasons. First, Claimant did not have a compensable disability because her alleged incapacity \u201cwas the result of her personal sensitivity to chemicals used in her work rather than from an occupational disease.\u201d Second, even if the disability was compensable, Claimant incurred no reduction in her earning capacity because she could have earned the same wages at other firms in the area where she lived without being exposed to the problem chemicals.\nThe issues are: (I) whether Claimant has a compensable disability; (II) whether Claimant incurred a reduction in earning capacity; and (III) whether Kearney was competent to testify as to the capabilities of Claimant to obtain other employment.\nEvery employer, as that term is defined in N.C.G.S. \u00a7 97-2(3) is obligated to pay compensation \u201cfor personal injury or death by accident arising out of and in the course of his employment. ...\u201d N.C.G.S. \u00a7 97-3. \u201cDisablement or death of an employee resulting from an occupational disease . . . shall be treated as the happening of an injury by accident. . . .\u201d N.C.G.S. \u00a7 97-52. \u201cDisablement\u201d is defined as the equivalent of \u201cdisability.\u201d N.C.G.S. \u00a7 97-54. \u201cDisability\u201d is defined as an \u201cincapacity ... to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u201d N.C.G.S. \u00a7 97-2(9).\nTherefore, an employee is entitled to compensation under the Workers\u2019 Compensation Act (Act) if there is an \u201cincapacity [\u2018resulting from an occupational disease\u2019] to earn wages which the employee was receiving at the time [the occupational disease developed] ... in the same or any other employment.\u201d Thus, Claimant\u2019s post-injury earning capacity is the determinative factor in assessing disability. A claimant\u2019s \u201cactual post-injury earnings will create a presumption of earning capacity commensurate\u201d with the post-injury earnings. 2 Larson\u2019s Workmen\u2019s Compensation Law \u00a7 57.21(d), 10-113. However, this presumption may be rebutted by either party. Id. If the post-injury earnings are equal to the pre-injury earnings, the claimant may attempt to explain \u201caway the post-injury earnings as an unreliable basis for estimating capacity.\u201d Id. at 10-125. If the post-injury earnings are less than the pre-injury earnings, the employer may present evidence that there are other available jobs for which the claimant is qualified and which pay equivalent to or greater than the claimant\u2019s pre-injury earnings. See American Metals Climax, Inc. v. Cisneros, 195 Colo. 163, 576 P.2d 553 (1978).\nThe burden of proof rests upon the claimant to prove the \u201cexistence of his disability and its extent.\u201d Hendrix v. Linn-Corriher Corp., 317 N.C. 179, 185, 345 S.E.2d 374, 378 (1986). Relevant on these issues is evidence that the claimant may be unsuited for particular employment \u201cdue to characteristics peculiar to him.\u201d Hilliard v. Apex Cabinet Co., 305 N.C. 593, 596, 290 S.E.2d 682, 684 (1982).\nI\nEmployer, relying on 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) (claimant\u2019s incapacity was result of personal sensitivity not occupational disease), argues that Claimant\u2019s incapacity, if any, was the result of a personal sensitivity to chemicals not the result of an occupational disease. We disagree. Sebastian applies only in those situations where an occupational disease does not exist. See Thomas v. Hanes Printables, 91 N.C. App. 45, 50, 370 S.E.2d 419, 422 (1988) (court in Sebastian was unconvinced that claimant\u2019s \u201cpersonal sensitivity\u201d met the definition of an occupational disease). The issue of whether Claimant\u2019s dermatitis was an occupational disease is not here presented because the parties stipulated that the Claimant had an occupational disease. Therefore, Sebastian is not here applicable. Furthermore, all the evidence supports a conclusion that Claimant\u2019s incapacity, if any, was the result of her occupational disease. It is undisputed that the Claimant could not continue to work as a machinist \u201cB\u201d because it exposed her to chemicals that caused dermatitis. Therefore, any reduction in Claimant\u2019s capacity to earn wages was the result of Claimant\u2019s occupational disease.\nII\nEmployer argues that Claimant has failed in her ultimate burden of proving any reduction in her earning capacity. We agree. When Claimant presented evidence of her \u201cpost-injury\u201d earnings, a presumption was created that her earning capacity was consistent with those earnings. 2 Larson\u2019s Workmen\u2019s Compensation Law \u00a7 57.21(d), at 10-113. In that her \u201cpost-injury\u201d earnings were less than her \u201cpre-injury\u201d earnings, there was proof of a reduction in Claimant\u2019s earning capacity. However, Employer offered uncontested evidence that other jobs were available which Claimant was capable of getting and which paid wages equivalent to her \u201cpre-injury\u201d wages and that these jobs did not require exposure to the problem chemicals. Kennedy v. Duke University Medical Center, 101 N.C. App. 24, 33, 398 S.E.2d 677, 682 (1990) (after claimant meets initial burden, burden on employer to \u201cshow not only that suitable jobs are available, but also that the plaintiff is capable of getting one ...\u201d). With the introduction of this evidence by Employer, it was incumbent upon Claimant to dispute this evidence or show that she had unsuccessfully sought such other employment. Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 400, 368 S.E.2d 388, 390, disc. rev. denied, 323 N.C. 171, 373 S.E.2d 104 (1988) (the ultimate question is whether the claimant can obtain the job). Here, Claimant presented no evidence contesting the availability of other jobs or her suitability for those jobs and furthermore presented no evidence that she sought employment at any of these places. Accordingly, Employer offered sufficient evidence to rebut the presumption that Claimant sustained a reduction in her earning capacity. The Commission found facts consistent with the Employer\u2019s evidence and those findings support the conclusions of the Commission that there did not exist any disability. Hilliard, 305 N.C. at 595, 290 S.E.2d at 684 (if competent evidence in the record to support findings, appellate court is bound).\nIll\nClaimant argues that Employer\u2019s evidence offered through Kearney regarding Claimant\u2019s capability of obtaining other employment was incompetent in that his testimony was \u201can excursion well beyond his bounds of expertise in \u2018labor market analysis with particular emphasis on job analysis and evaluation and compensation rates.\u2019 \u201d We disagree.\nSince there was no dispute regarding Claimant\u2019s capability to work in an environment free of the offending chemicals, Kearney was competent to offer his opinion on Claimant\u2019s capability of obtaining other employment where there would be no exposure to the offending chemicals.\nWe have reviewed Claimant\u2019s additional assignments of error and find them to be without merit.\nAffirmed.\nJudges Wells and Wynn concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Lore & McClearen, by R. Edwin McClearen and F. Scott Templeton, for plaintiff-appellant.", "Young, Moore, Henderson & Alvis, P.A., by Dean Webster and Dana Davis, for defendant-appellees." ], "corrections": "", "head_matter": "SHELBY TYNDALL, Plaintiff, Employee v. WALTER KIDDE CO., Employer and NATIONAL UNION, Carrier, Defendants\nNo. 9010IC815\n(Filed 7 May 1991)\n1. Master and Servant \u00a7 68 (NCI3d)\u2014 machinist \u2014 dermatitis \u2014 occupational disease \u2014 not personal sensitivity\nIn a workers\u2019 compensation action where claimant machinist claimed that she had contracted an occupational disease, dermatitis, caused by a chemical with which she came into contact in the course of her employment, any reduction in her capacity to earn wages was the result of her occupational disease where the parties stipulated that she had an occupational disease and all of the evidence supported the conclusion that claimant\u2019s incapacity was the result of her occupational disease. Although respondent argued personal sensitivity under Sebastian v. Hair Styling, 40 N.C.App. 30, Sebastian applies only to those situations where an occupational disease does not exist.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 229, 317.\n2. Master and Servant \u00a7 68 (NCI3d)\u2014 machinist \u2014 dermatitis\u2014 failure to prove reduction in earning capacity\nA machinist claiming dermatitis in a workers\u2019 compensation case failed to prove any reduction in her earning capacity where her post-injury earnings were less than her pre-injury earnings, but the employer offered uncontested evidence that other jobs were available which paid wages equivalent to the pre-injury wages and which did not require exposure to the problem chemicals.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7 348.\n3. Master and Servant \u00a7 93.3 (NCI3d| \u2014 workers\u2019 compensation-machinist\u2019s dermatitis \u2014 expert testimony in labor market analysis \u2014 admissible\nThe testimony of an expert in labor market analysis with particular emphasis on job analysis and evaluation and compensation rates was admissible in a workers\u2019 compensation action arising from claimant machinist\u2019s dermatitis where there was no dispute regarding claimant\u2019s capability to work in an environment free of the offending chemicals. The expert was competent to offer his opinion on claimant\u2019s capability of obtaining other employment where there would be no exposure to those chemicals.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7 528.\nAPPEAL by plaintiff from Opinion and Award of North Carolina Industrial Commission entered 1 May 1990. Heard in the Court of Appeals 13 February 1991.\nLore & McClearen, by R. Edwin McClearen and F. Scott Templeton, for plaintiff-appellant.\nYoung, Moore, Henderson & Alvis, P.A., by Dean Webster and Dana Davis, for defendant-appellees." }, "file_name": "0726-01", "first_page_order": 756, "last_page_order": 763 }