{ "id": 8549521, "name": "FRED W. MABE, Employee, Plaintiff v. THE NORTH CAROLINA GRANITE CORPORATION, Employer, SELF-INSURER, Defendant", "name_abbreviation": "Mabe v. North Carolina Granite Corp.", "decision_date": "1972-07-12", "docket_number": "No. 7217IC444", "first_page": "253", "last_page": "256", "citations": [ { "type": "official", "cite": "15 N.C. App. 253" } ], "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": "186 S.E. 2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "13 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554303 ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0474-01" ] }, { "cite": "139 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "70 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "708" } ], "opinion_index": 0 }, { "cite": "235 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626215 ], "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0602-01" ] }, { "cite": "50 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167539 ], "opinion_index": 0, "case_paths": [ "/nc/229/0660-01" ] }, { "cite": "115 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625537 ], "opinion_index": 0, "case_paths": [ "/nc/252/0716-01" ] } ], "analysis": { "cardinality": 446, "char_count": 8820, "ocr_confidence": 0.512, "pagerank": { "raw": 5.355935213323568e-07, "percentile": 0.9434984433455387 }, "sha256": "bbb45bc0bf392f94a9e88f06a8f84c9aa16b2ac4d188fc1dc76251d4db917a02", "simhash": "1:2851426f45984ddf", "word_count": 1433 }, "last_updated": "2023-07-14T17:26:51.335715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Vaughn concur." ], "parties": [ "FRED W. MABE, Employee, Plaintiff v. THE NORTH CAROLINA GRANITE CORPORATION, Employer, SELF-INSURER, Defendant" ], "opinions": [ { "text": "GRAHAM, Judge.\nDefendant 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.\nThe term \u201cdisablement\u201d as applied to cases of asbestosis and silicosis, \u201cmeans 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. ...\u201d G.S. 97-54.\nIn 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, \u201che is unable to perform hard labor due to shortness of breath resulting from silicosis.\u201d 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. \u201cIf 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.\u201d Thomason v. Cab Co., 235 N.C. 602, 605, 70 S.E. 2d 706, 708.\nDefendant excepts to paragraph 7 of the order wherein it is stated, \u201c [claimant's incapacity for work resulting from silicosis is total....\u201d It also excepts to the following conclusion: \u201cDue to claimant\u2019s 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\u2019s education and experience which limit him to hard labor employment, which he cannot perform due to shortness of breath, renders claimant totally incapacitated \u2018. . . 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. . .. \u2019\u201d\nThe Commission\u2019s 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\u2019s 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.\n\u201cUnder the Workmen\u2019s Compensation Act disability refers not to physical infirmity but to a diminished capacity to earn money.\u201d 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 does not alter in the slightest the incapacity to earn which he actually suffers because of silicosis.\nDefendant 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\u2019s 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\u2019s Compensation Law, \u00a7 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\u2019s advanced age and poor learning on the grounds that if it were not for these factors he might still retain some earning capacity.\nOur 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\u2019s 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 \u201cshall be in lieu of all other compensation.\u201d 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.\nAffirmed.\nJudges Morris and Vaughn concur.", "type": "majority", "author": "GRAHAM, Judge." } ], "attorneys": [ "Hiatt and Hiatt by David L. Hiatt for plaintiff appellee.", "Gardner and Gardner by John C. W. Gardner for defendant appellant." ], "corrections": "", "head_matter": "FRED W. MABE, Employee, Plaintiff v. THE NORTH CAROLINA GRANITE CORPORATION, Employer, SELF-INSURER, Defendant\nNo. 7217IC444\n(Filed 12 July 1972)\n1. Master and Servant \u00a7 94 \u2014 workmen\u2019s compensation \u2014 findings not excepted to\nFindings of fact by the Industrial Commission which are not the subject of any exception are binding on appeal.\n2. Master and Servant \u00a7 68 \u2014 workmen\u2019s compensation \u2014 silicosis \u2014 age and education \u2014 total disability\nFindings by the Industrial Commission 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, held sufficient to support the Commission\u2019s conclusion that 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, notwithstanding the advisory medical committee rated plaintiff as 40% disabled.\n3. Master and Servant \u00a7 68 \u2014 workmen\u2019s compensation \u2014 disability from silicosis\nIn determining an employee\u2019s disability from silicosis, the question is what effect has the disease had upon the earning capacity of that particular employee, not what effect a like physical impairment would have upon an employee of average age and intelligence.\n4. Master and Servant \u00a7 68 \u2014 workmen\u2019s compensation \u2014 industrial disease\u2014 age and education\nIf 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\u2019s advanced age and poor education on the ground that if it were not for such factors he might still retain some earning capacity.\nAppeal by defendant from order of Industrial Commission, filed 15 February 1972.\nPlaintiff worked as a stone cutter for defendant for a period of 30 to 35 years. He quit his job in 1968 and subsequently filed claim against defendant for disability caused by silicosis. Defendant voluntarily paid compensation as provided by G.S. 97-61.5 for a period of 104 weeks. In October of 1971 the matter came on for hearing before Deputy Commissioner Roney for purposes of determining, as required by G.S. 97-61.6, \u201cwhat compensation, if any, the employee is entitled to receive in addition to the 104 weeks already received.\u201d\nThe only evidence offered at the hearing was testimony of plaintiff and a report from the advisory medical committee. The report, filed 3 August 1971, indicates that pursuant to G.S. 97-61.4, plaintiff was examined by the committee for the third and final time and in the opinion of the committee \u201che is 40% disabled from employment in his previous or any other occupation.\u201d\nPlaintiff\u2019s testimony tends to show that he has not held regular employment since 1968 because, due to a shortness of breath and a lack of strength, he can no longer perform hard labor. Plaintiff has only a fifth grade education. He can read a little but \u201ccan\u2019t write much.\u201d He stated: \u201cI have no education and don\u2019t know nothing but hard labor and I can\u2019t get a job like that.\u201d\nCommissioner Roney entered an order finding facts and concluding that plaintiff is totally incapacitated for work because of silicosis. Based upon this conclusion, plaintiff was awarded total disability benefits as provided by G.S. 97-61.6. The Full Commission affirmed Mr. Roney\u2019s order and defendant appealed.\nHiatt and Hiatt by David L. Hiatt for plaintiff appellee.\nGardner and Gardner by John C. W. Gardner for defendant appellant." }, "file_name": "0253-01", "first_page_order": 277, "last_page_order": 280 }