{ "id": 5314059, "name": "CLARA MAY LACKEY, Plaintiff Employee v. R. L. STOWE MILLS, INC., Employer Defendant and SELF-INSURED (Hewitt, Coleman & Associates), Carrier; Defendant(s)", "name_abbreviation": "Lackey v. R. L. Stowe Mills, Inc.", "decision_date": "1992-07-07", "docket_number": "No. 9110IC475", "first_page": "658", "last_page": "663", "citations": [ { "type": "official", "cite": "106 N.C. App. 658" } ], "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": "181 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "374 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "485" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 473", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527187 ], "year": 1988, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0473-01" ] }, { "cite": "398 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "682" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8524683 ], "year": 1988, "pin_cites": [ { "page": "400-01" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0397-01" ] }, { "cite": "189 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "evidence sufficient to support compensation award for total disability where lung disease rendered worker capable of performing only sedentary work for which worker's job training and skills did not qualify worker" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549521 ], "year": 1972, "pin_cites": [ { "parenthetical": "evidence sufficient to support compensation award for total disability where lung disease rendered worker capable of performing only sedentary work for which worker's job training and skills did not qualify worker" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0253-01" ] }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "342 S.E.2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "809" }, { "page": "808" }, { "page": "809" } ], "opinion_index": 0 }, { "cite": "316 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704100 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "444" }, { "page": "441" }, { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0426-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1985, "opinion_index": 0 }, { "cite": "3 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "215 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631990 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/nc/215/0752-01" ] }, { "cite": "314 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526784 ], "year": 1984, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0151-01" ] }, { "cite": "63 S.E.2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599630 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0088-01" ] }, { "cite": "399 S.E.2d 104", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543161 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0067-01" ] }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(24)" }, { "page": "(24)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 653, "char_count": 12081, "ocr_confidence": 0.748, "pagerank": { "raw": 3.0031868558429923e-07, "percentile": 0.8526753876384299 }, "sha256": "da409f1913555a93380a97837a9fbab2c54b3ed1c0af17e9d1983921eb73ab74", "simhash": "1:57b10d52c18b5017", "word_count": 1902 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and GREENE concur." ], "parties": [ "CLARA MAY LACKEY, Plaintiff Employee v. R. L. STOWE MILLS, INC., Employer Defendant and SELF-INSURED (Hewitt, Coleman & Associates), Carrier; Defendant(s)" ], "opinions": [ { "text": "JOHNSON, Judge.\nPlaintiff filed a worker\u2019s compensation claim on 9 November 1988. Testimony was heard before Industrial Commissioner Morgan S. Chapman on 19 October 1989. Subsequent to the hearing, medical testimony was submitted to the hearing officer by depositions and stipulated records. On 13 March 1990, the deputy commissioner filed an opinion and award granting plaintiff scheduled benefits under N.C. Gen. Stat. \u00a7 97-13, but denying plaintiff wage loss benefits under N.C. Gen. Stat. \u00a7\u00a7 97-29 or 97-30. Plaintiff appealed that decision to the full Industrial Commission. On 18 December 1990, the Industrial Commission summarily affirmed the lower opinion and award. Plaintiff\u2019s counsel received the opinion and award on 19 February 1991, and filed notice of appeal on 20 February 1991.\nOn 3 April 1991, defendants moved to dismiss plaintiff\u2019s appeal for failure to timely file. Commissioner J. Randolph Ward denied defendants\u2019 motion to dismiss. Defendants now appeal the denial of their motion to dismiss. Although this Court recognizes that notice of appeal was given after the thirty-day time period prescribed by the Rules of Appellate Procedure, we view this appeal as a writ of certiorari pursuant to Rule 21(a)(1). N.C.R. App. P. 21(a)(1).\nClara Lackey, who was born in 1923, began working in cotton textile mills in 1942, and except for the years of 1956-67, she worked in cotton mills until 1988. During her employment in the mills, plaintiff was exposed to respirable cotton dust. When plaintiff\u2019s pulmonary function levels were first tested by defendants in 1980, plaintiff\u2019s test results were below acceptable levels. Plaintiff was required to sign an agreement that her permanent employment would be conditioned on the applicant satisfactorily passing specified medical tests which were designed to detect medical conditions that may be aggravated by exposure to certain environments of the work area. In spite of plaintiff\u2019s unacceptable pulmonary test results, she remained employed by defendant employer until 1988j when she quit because of breathing problems. Plaintiff testified that she \u201ccouldn\u2019t take the cotton [dust] any longer.\u201d\nPlaintiff was diagnosed as having chronic obstructive pulmonary disease and byssinosis by Dr. David E. Shanks and Dr. Ted R. Kunstling in 1989. Seven years prior to those diagnoses, plaintiff had been seen by Dr. T. Reginald Harris at defendant employer\u2019s request. After his evaluation, Dr. Harris specifically stated that \u201c[s]hould [the plaintiff] develop acute response to her work environment by a decrease in ventilation, or should she develop symptoms associated with her work environment . . . then she should wear a ventilator ... or should be transferred to a lower [cotton] dust area.\u201d In the years following Dr. Harris\u2019 evaluation, plaintiff\u2019s pulmonary function tests by or for defendants consistently showed impaired respiratory function and reactivity to her work environment. Plaintiff continued to work as a winder until she was transferred to weekend janitorial duty in 1986.\nThe Industrial Commission found that plaintiff \u201cis unable to work in a cotton textile mill because of the environment, and she is unable to perform strenuous activity as a result of her lung disease.\u201d The Commission found and concluded that plaintiff was entitled to $15,000 under the scheduled provisions of N.C. Gen. Stat. \u00a7 97-31(24) for permanent injury to her lungs.\nThe Commission also found that plaintiff \u201chas not intended to work\u201d since leaving work in 1988, and that she \u201cretains earning capacity.\u201d The Commission further stated that \u201c[h]er actual earning capacity cannot be determined because, having retired, she has made no effort to obtain employment.\u201d The Commission concluded that \u201c[p]laintiff has the burden of proving the fact of her disability and its degree. Having not met that burden, she is not entitled to compensation for permanent disability.\u201d The Commission cited N.C. Gen. Stat. \u00a7\u00a7 97-29 thru 97-31 and Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982) to support its position.\nPlaintiffs sole assignment of error is that the Commission erred in its findings and conclusions regarding plaintiff\u2019s capacity to earn wages, and in its resulting award. The Commission found that Ms. Lackey is incapable of returning to her pre-disability employment and concluded that she suffers from an occupational disease. The Commission also ruled, however, that for plaintiff to be entitled to total incapacity benefits under N.C. Gen. Stat. \u00a7 97-29, she was required to prove a loss of wage earning capacity. Therefore, the Commission limited plaintiff\u2019s award to scheduled benefits under N.C. Gen. Stat. \u00a7 97-31(24) for permanent injury to her lungs.\nIt is well established that the Industrial Commission\u2019s findings of fact are binding on appeal when supported by competent evidence. See Cody v. Snider Lumber Co., 328 N.C. 67, 399 S.E.2d 104 (1991); see also Vause v. Equipment Co., 233 N.C. 88, 63 S.E.2d 173 (1951). It is also well established that findings of fact made by the Commission under a misapprehension of applicable law are not binding upon a reviewing court. Mills v. Mills, 68 N.C. App. 151, 158, 314 S.E.2d 833, 838 (1984); McGill v. Lumberton, 215 N.C. 752, 3 S.E.2d 324 (1939); N.C. Gen. Stat. \u00a7 97-86 (1985). In the instant case, plaintiff argues that there is no evidence to support a finding that she retains any earning capacity. We agree.\nIn Peoples v. Cone Mills Corp., 316 N.C. 426, 444, 342 S.E.2d 798, 809 (1986), our Supreme Court held:\nIn order to prove disability, the employee need not prove he unsuccessfully sought employment if the employee proves he is unable to obtain employment. An unsuccessful attempt to obtain employment is, certainly, evidence of disability. Where, however, an employee\u2019s effort to obtain employment would be futile because of age, inexperience, lack of education or other preexisting factors, the employee should not be precluded from compensation for failing to engage in the meaningless exercise of seeking a job which does not exist.\nDefendant\u2019s employees\u2019 testimony reveals that had plaintiff been a prospective employee looking for work, she could not have obtained work at defendant\u2019s mills. Jerry Hooper, defendant\u2019s plant manager, testified that as early as 1982, plaintiff was not passing the pulmonary functions tests. Clifton Logsdon, defendant\u2019s personnel manager, testified that a prospective employee who could not pass the pulmonary functions tests \u201cwould not be hired.\u201d Thus, plaintiff could not have obtained her pre-disability employment should she have sought such work. This evidence coupled with the facts that plaintiff was 65 years old when she left defendant\u2019s employ; that since age 18 she had worked in cotton textile mills for at least 35 years; and that plaintiff has an eighth-grade education, meets plaintiff\u2019s burden of proving that her wage earning capacity has been impaired by injury.\nOur Supreme Court stated in Peoples, 316 N.C. at 441, 342 S.E.2d at 808, that \u201cwhere occupational lung disease incapacitates an employee from all but sedentary employment, and because of the employee\u2019s age, limited education or work experience no sedentary employment for which the employee is qualified exists, the employee is entitled to compensation for total disability.\u201d See Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983); see also Mabe v. Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804 (1972) (evidence sufficient to support compensation award for total disability where lung disease rendered worker capable of performing only sedentary work for which worker\u2019s job training and skills did not qualify worker).\nAfter plaintiff meets her initial burden, the burden then shifts to defendants who must show that plaintiff is employable. \u201c[B]efore it can be determined that this plaintiff is employable and can earn wages it must be established, not merely that jobs are available or that the average job seeker can get one, but that [the plaintiff] can obtain a job taking into account his specific limitations.\u201d Bridges v. Linn-Corriher Corp., 90 N.C. App. 397, 400-01, 368 S.E.2d 388, 391, disc. review denied, 323 N.C. 171, 373 S.E.2d 104 (1988). This Court, in Kennedy v. Duke Univ. Med. Center, 101 N.C. App. 24, 32-33, 398 S.E.2d 677, 682 (1990), stated that:\nBridges did not change the long-standing rule that the claimant has the initial burden of proving that his/her wage earning capacity has been impaired by injury. Rather, Bridges stands for the proposition that once the claimant meets this initial burden, the defendant who claims that the plaintiff is capable of earning wages must come forward with evidence to show not only that suitable jobs are available, but also that plaintiff is capable of getting one, taking into account both physical and vocational limitations.\nIn the case sub judice, defendants presented no evidence that plaintiff retains wage earning capacity; therefore, the Commission\u2019s finding that plaintiff retained wage earning ability is unsupported by evidence and is not binding on appeal.\nThe Commission\u2019s reliance on Hilliard is misplaced. The Peoples Court explained that Hilliard simply stands for the proposition that \u201c[i]n order to prove disability, the employee need not prove he unsuccessfully sought employment if the employee proves he is unable to obtain employment.\u201d 316 N.C. at 443, 342 S.E.2d at 809.\nOnce disability is proven, \u201cthere is a presumption that it continues until \u2018the employee returns to work at wages equal to those he was receiving at the time the injury occurred.\u2019 \u201d Watson v. Winston-Salem Transit Authority, 92 N.C. App. 473, 476, 374 S.E.2d 483, 485 (1988), quoting, Watkins v. Motor Lines, 279 N.C. 132, 137, 181 S.E.2d 588, 592 (1971). Because plaintiff has met the initial burden of showing injury to her wage earning capacity, and defendants offered no evidence showing that plaintiff retains wage earning capacity, the proper remedy is an ongoing award of disability benefits for total incapacity under N.C. Gen. Stat. \u00a7 97-29. The Commission\u2019s finding that plaintiff retains earning capacity is unsupported by the evidence; therefore, the finding is not binding on appeal. Accordingly, the decision of the Industrial Commission is reversed and remanded to the full Commission for entry of award consistent with this opinion.\nReversed and remanded.\nJudges COZORT and GREENE concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Lore & McClearen, by F. Scott Templeton, for plaintiff-appellant.", "Maupin Taylor Ellis & Adams, P.A., by Steven M. Rudisill and Jack S. Holmes, for defendants-appellees." ], "corrections": "", "head_matter": "CLARA MAY LACKEY, Plaintiff Employee v. R. L. STOWE MILLS, INC., Employer Defendant and SELF-INSURED (Hewitt, Coleman & Associates), Carrier; Defendant(s)\nNo. 9110IC475\n(Filed 7 July 1992)\nMaster and Servant \u00a7 68 (NCI3d)\u2014 byssinosis \u2014disability\u2014retained earning capacity\nThe Industrial Commission erred by finding that plaintiff was incapable of returning to her pre-disability employment, concluding that she suffered from an occupational disease, and limiting her award to scheduled benefits under N.C.G.S. \u00a7 97-29 for permanent injury to her lungs because plaintiff was required to prove a loss of wage earning capacity to be entitled to total incapacity benefits under N.C.G.S. \u00a7 97-31(24). Evidence that plaintiff could not have obtained her pre-disability employment should she have sought such work, coupled with the facts that she was 65 years old when she left plaintiffs employ; that she had worked in cotton textile mills since age 18, at least 35 years; and that she has an eighth-grade education meets plaintiff\u2019s burden of proving that her wage earning capacity has been impaired by injury. Defendants presented no evidence that plaintiff retains wage earning capacity; therefore, the finding that she retained wage earning ability is unsupported by evidence.\nAm Jur 2d, Workmen\u2019s Compensation \u00a7 347.\nAPPEAL by plaintiff from opinion and award filed 18 December 1990 by the North Carolina Industrial Commission. Heard in the Court of Appeals 12 March 1992.\nLore & McClearen, by F. Scott Templeton, for plaintiff-appellant.\nMaupin Taylor Ellis & Adams, P.A., by Steven M. Rudisill and Jack S. Holmes, for defendants-appellees." }, "file_name": "0658-01", "first_page_order": 688, "last_page_order": 693 }