{ "id": 8552487, "name": "RICHARD G. PRUITT, Employee-Plaintiff v. KNIGHT PUBLISHING COMPANY, Employer-Defendant and TRAVELERS INSURANCE COMPANY, Carrier-Defendant", "name_abbreviation": "Pruitt v. Knight Publishing Co.", "decision_date": "1975-10-15", "docket_number": "No. 7526IC405", "first_page": "254", "last_page": "260", "citations": [ { "type": "official", "cite": "27 N.C. App. 254" } ], "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": "199 S.E. 385", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "page": "387" } ], "opinion_index": 0 }, { "cite": "214 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630612 ], "year": 1938, "pin_cites": [ { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0353-01" ] }, { "cite": "233 Ark. 622", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691633 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/233/0622-01" ] }, { "cite": "228 S.C. 67", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2103523 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/sc/228/0067-01" ] }, { "cite": "159 Neb. 227", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2616857 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/neb/159/0227-01" ] }, { "cite": "316 So. 2d 22", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9610557 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/so2d/316/0022-01" ] }, { "cite": "210 A. 2d 430", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1965, "opinion_index": 0 }, { "cite": "88 N.J. Super. 9", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 307245 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nj-super/88/0009-01" ] }, { "cite": "219 A. 2d 168", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1966, "opinion_index": 0 }, { "cite": "47 N.J. 38", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1950517 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nj/47/0038-01" ] }, { "cite": "111 N.E. 792", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1916, "opinion_index": 0 }, { "cite": "223 Mass. 273", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 42016 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/mass/223/0273-01" ] }, { "cite": "1956 Wis. L. Rev. 331", "category": "journals:journal", "reporter": "Wis. L. Rev.", "opinion_index": 0 }, { "cite": "22 Ky. L. J. 582", "category": "journals:journal", "reporter": "Ky. L.J.", "year": 1934, "opinion_index": 0 }, { "cite": "277 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562441, 8562409, 8562347, 8562380, 8562316, 8562292 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0112-06", "/nc/277/0112-05", "/nc/277/0112-03", "/nc/277/0112-04", "/nc/277/0112-02", "/nc/277/0112-01" ] }, { "cite": "175 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 N.C. App. 604", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554313 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/8/0604-01" ] }, { "cite": "41 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "594", "parenthetical": "Concurring opinion of Seawell, J." } ], "opinion_index": 0 }, { "cite": "227 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622633 ], "year": 1947, "pin_cites": [ { "page": "191", "parenthetical": "Concurring opinion of Seawell, J." } ], "opinion_index": 0, "case_paths": [ "/nc/227/0184-01" ] }, { "cite": "189 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549521 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0253-01" ] }, { "cite": "139 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572007 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0569-01" ] }, { "cite": "181 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565922 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0132-01" ] }, { "cite": "64 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608280 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0372-01" ] }, { "cite": "43 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626937 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0638-01" ] } ], "analysis": { "cardinality": 758, "char_count": 14270, "ocr_confidence": 0.594, "pagerank": { "raw": 1.5543274407263507e-07, "percentile": 0.6757446090486356 }, "sha256": "ee383421101e960e0d54a48b31902bb9b6b0f4016d204cf855fcea318ea517bb", "simhash": "1:67fb869b986903d7", "word_count": 2234 }, "last_updated": "2023-07-14T22:44:36.927205+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Parker concurs.", "Judge Clark dissents." ], "parties": [ "RICHARD G. PRUITT, Employee-Plaintiff v. KNIGHT PUBLISHING COMPANY, Employer-Defendant and TRAVELERS INSURANCE COMPANY, Carrier-Defendant" ], "opinions": [ { "text": "BRITT, Judge.\nIn their brief, defendants contend that prior to his request to the Industrial Commission for a hearing, plaintiff entered into a written settlement agreement with defendants which has not been set aside in the manner authorized by G.S. 97-17. They further contend that plaintiff did not give notice of appeal from the hearing commissioner to the full commission within the time prescribed by G.S. 97-85. We do not think the questions raised by these contentions are before us in view of the following stipulation entered into before the hearing commissioner: \u201cThe sole question for determination in this case is whether allocation of the disability to plaintiff\u2019s back as rated by Dr. Goldner should be prorated, or whether the defendants should bear the entire responsibility for the disability.\u201d\nIt is settled that stipulations duly made constitute judicial admissions binding upon the parties and a party may not thereafter take a position inconsistent therewith. 7 Strong, N. C. Index 2d, Trial, \u00a7 6, pp. 262-63. See also Austin v. Hopkins, 227 N.C. 638, 43 S.E. 2d 849 (1947), where the court held that the parties having stipulated that the only question involved was the location of the true dividing line between the respective lands, neither party could thereafter raise the question of title. Thus we find no merit in the contentions.\nWe then come to the real question presented by this appeal: Did the Industrial Commission err in concluding that plaintiff\u2019s compensation should be based on the percentage of disability attributable to the injury sustained on 30 November 1972? We answer in the affirmative.\nIn cases covered by our Workmen\u2019s Compensation Act, disability is not a term of art but a creature of statute. G.S. 97-2 (9) provides: \u201cThe term \u2018disability\u2019 means 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.\u201d Thus we see that disability is defined in terms of a diminution in earning power. It is more than mere physical injury and is markedly different from technical or functional disability. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E. 2d 265 (1951). Our Supreme Court has described disability as the event of being incapacitated from the performance of normal labor. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E. 2d 588 (1971); Hall v. Chevrolet, Inc., 263 N.C. 569, 139 S.E. 2d 857 (1965).\nAn employer takes his employees as he finds them. Mabe v. North Carolina Granite Corp., 15 N.C. App. 253, 189 S.E. 2d 804 (1972). See e.g., Edwards v. Publishing Co., 227 N.C. 184, 191, 41 S.E. 2d 592, 594 (1947) (Concurring opinion of Seawell, J.). Each employee brings to the job his own particular set of strengths and weaknesses. That one employee is peculiarly disposed to injury because of an infirmity or disease incurred prior to his employment affords no sound basis for a reduction in the employer\u2019s liability. The fact that a person of normal faculties working under the same conditions might not have sustained the same injury to the same degree is immaterial. Plaintiff was putting forth a full day\u2019s work for a full day\u2019s pay. There is no evidence that plaintiff\u2019s capacity to earn in the course of employment at defendant\u2019s printing plant was at all impaired by after-effects of the 1961 automobile accident.\nThe record reveals the 1972 injury as the causal force which transformed latent infirmity into disability within the contemplation of the Workmen\u2019s Compensation Act. The force of the earlier injury was spent; the after-effects, both long and short term, had abated to the extent that plaintiff regularly performed heavy manual labor \u2014 lifting lead plates \u2014 at defendant employer\u2019s printing plant. The vulnerative force of the 1972 accident acted directly upon the situs of the earlier injury and surgery, causing, \u201c. . . the impingement of the old fusion on L3 spinous process.\u201d By invading theretofore unoffending aspects of the earlier injury the accident of defendant\u2019s printing plant became the prime cause of plaintiff\u2019s disability. Starr v. Charlotte Paper Co., 8 N.C. App. 604, 175 S.E. 2d 342 (1970), cert. denied, 277 N.C. 112 (1970). See generally the following related medico-legal articles: Grave, Compensation Aggravation and Acceleration of Pre-Existing Infirmities Under Workmen\u2019s Compensation Acts, 22 Ky. L. J. 582 (1934) ; Flaxman, Pre-Existing Spondylolisthesis, Aggravation Of, 1956 Med. Trial Tech. Q. 127.\nIn 2 A. Larson, Workmen\u2019s Compensation Law, \u00a7 59.20, pp. 10-270-278 (1972), we find:\n\u201cApart from special statute, apportionable \u2018disability\u2019 does not include a prior nondisabling defect or disease that contributes to the end result. Nothing is better established in compensation law than the rul\u00e9 that, when industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable, and, except in states having special statutes on aggravation of disease, no attempt is made to' weigh the relative contribution of the accident and the preexisting condition to the final disability or death. ...\u201d\nOur act contains no special statute which would authorize apportionment in the instant c\u00e1se.\nThere is a distinction between a preexisting impairment independently producing all or part of a final disability, and a preexisting condition acted upon by a subsequent aggravating injury which precipitates disability. Plaintiff\u2019s claim falls in the latter category.\nOur decision is in accord with the majority, and we think the better, view of those jurisdictions which have spoken on the subject of preexisting infirmities' aggravated by subsequent industrial injury. 2 A. Larson, Workmen\u2019s Compensation Law, supra; 11 W. Schneider\u2019s Workmen\u2019s Compensation, \u00a7 2303 (perm. ed. 1957) ; Kendis and Kendis, Aggravation Under Workmen\u2019s Compensation, 17-Clev-Mar. L. Rev. 93 (1968) ; Comment, Successive Insurers and the Accident which Aggravates a Preexisting Condition, 1956 Wis. L. Rev. 331. See e.g., Anderson v. Northwestern Motor Co., supra. It is an established precept that employers take their employees as they find them. Branconnier\u2019s- Case, 223 Mass. 273, 111 N.E. 792 (1916) ; Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A. 2d 168 (1966), aff\u2019g, 88 N.J. Super. 9, 210 A. 2d 430 (1965); Roberson v. Liberty Mutual Insurance Co., 316 So. 2d 22 (La. App. 1975). So long as an individual'is capable of doing that for which he was hired, then the- employer\u2019s liability for injury due to Industrial accident ought not be reduced due to the existence of a nonincapacitating infirmity. Knudsen v. MeNeely, 159 Neb. 227, 66 N.W. 2d 412 (1954) ; Gordon v. E. I. DuPont De Nemours & Co., 228 S.C. 67, 88 S.E. 2d 844 (1955) ; Shainberg v. Dacus, 233 Ark. 622, 346 S.W. 2d 462 (1961). While a distinction can be found in the cases, depending on whether the infirmity which is aggravated by subsequent industrial injury is traceable to disease or a previous injury, that point is not presently before us. \u2022\nThere are limited provisions for apportionment of disability under our Workmen\u2019s Compensation Law. Pursuant to G.S. 97-33 disability may be apportioned between injuries connected with military service and those sustained in the course of other employment. The Supreme Court has held the policy evinced by this statute is designed to thwart double recoveries. Schrum v. Upholstering Co., 214 N.C. 353, 355, 199 S.E. 385, 387 (1938). G.S. 97-35 also has limited provision for apportionment. Its application is restricted to successive injuries arising out of the same employment, and certain other cases. Neither of these statutes is applicable to the facts of this case where plaintiff received no compensation for his earlier back injury which arose out of a noncompensable automobile accident separate and apart from any employment.\nFor the reasons stated, we vacate the 25 February 1975 order of the Industrial Commission and remand the cause for further proceedings not inconsistent with this opinion. -\nReversed. and remanded.\nJudge Parker concurs.\nJudge Clark dissents.", "type": "majority", "author": "BRITT, Judge." }, { "text": "Judge Clark\ndissenting:\nI cannot accept this proposition that where , an employee suffers a job related injury the employer is liable for all disability, including a prior noncompensable injury outside and having no causal connection with his present employment.\nThe purpose of the Workmen\u2019s Compensation Act , is to provide compensation for industrial injuries. It was not intended to provide compensation for injuries sustained outside of and unrelated to employment. And construing pari materia the apportionment provisions in G.S. 97-33 and G.S. 97-35, it is my opinion that they are not, and were not intended to be, in derogation of the common law rules of proximate cause and damages. Nor do the Mabe and Schrum cases, relied on by plaintiff and cited by the majority, support the proposition.\nThe majority nonapportionment rule would result in the discharge of handicapped workers and impair the employment opportunities of the handicapped.\nI agree with the ruling of the Industrial Commission that plaintiff recover only for the disability incurred by his employment-related injury.", "type": "concurrence", "author": "Judge Clark" } ], "attorneys": [ "Palmer, McMullen, Griffin & Pittman, P.A., by Richard L. Griffin, for plaintiff appellant.", "Spears, Spears, Barnes, Baker and Boles, by Alexander H. Barnes, for defendant appellees." ], "corrections": "", "head_matter": "RICHARD G. PRUITT, Employee-Plaintiff v. KNIGHT PUBLISHING COMPANY, Employer-Defendant and TRAVELERS INSURANCE COMPANY, Carrier-Defendant\nNo. 7526IC405\n(Filed 15 October 1975)\n1. Trial \u00a7 6\u2014 stipulations \u2014 binding effect on parties\nIt is settled that stipulations duly made constitute judicial admissions binding upon the parties and a party may not thereafter take a position inconsistent therewith; therefore, defendants who entered into a stipulation before the hearing commissioner as to the sole question for determination could not raise on appeal two other questions not contained in the stipulation.\n2. Master and Servant \u00a7 69\u2014 workmen\u2019s compensation \u2014 disability defined\nThe term \u201cdisability\u201d means 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; it is more than mere physical injury and is markedly different from technical or functional disability; it is the event of being incapacitated from the performance of normal labor. G.S. 97-2(9).\n3. Master and Servant \u00a7 66\u2014 preexisting condition \u2014 disposition to injury \u2014 no reduction in compensation\nThat one employee is peculiarly disposed to injury because of an infirmity or disease incurred prior to his employment affords no sound basis for a reduction in the employer\u2019s liability. ;\n4. Master and Servant \u00a7\u00a7 65, 66\u2014 workmen\u2019s compensation \u2014 preexisting condition \u2014 back injury \u2014 cause of disability\nEvidence was sufficient to support a finding that an injury sustained by plaintiff in defendant\u2019s plant in 1972 was the causal force which transformed latent infirmity into disability within the contemplation of the Workmen\u2019s Compensation Act where such evidence tended to show that plaintiff sustained a back injury in an automobile accident ten years prior to the accident in defendant\u2019s plant but th'e after-effects of the earlier injury, both long and short term, had abated to the extent that plaintiff regularly performed heavy manual labor \u2014 lifting lead plates \u2014 at defendant employer\u2019s printing plant.\n5. Master and Servant \u00a7 72\u2014 workmen\u2019s compensation \u2014 preexisting condition\u2014 subsequent injury \u2014 apportionment of disability improper\nWhere there was evidence that plaintiff had a 35 percent permanent disability of the spine with 25 percent attributable to the preexisting injury and 10 percent attributable to aggravation by the subsequent injury at defendant\u2019s printing plant, the Industrial Commission erred in concluding that plaintiff\u2019s compensation should be based on the percentage of disability attributable to the injury sustained in defendant\u2019s plant.\nJudge Clark dissenting.\nAppeal by plaintiff from order of the North Carolina Industrial Commission entered 25 February 1975. Heard in the Court of Appeals 4 September 1975.\n[ . For several years prior to 30 November 1972, plaintiff was employed by defendant employer in its printing plant. In his job plaintiff was required to handle heavy printing plates. On said date, while exerting unusual effort to jerk a stuck top from the gear box of a machine, plaintiff sustained an injury to his back. It was stipulated that the injury resuted from-an accident arising out of, and in the course of, plaintiff\u2019s employment. He sustained temporary total disability for one year and was paid compensation for that period.\nDuring the course of medical treatment, plaintiff, was referred to Dr. J. L. Goldner at Duke University Medical Center for examination, treatment and evaluation. Some ten years previously, Dr. Goldner had treated plaintiff for a back injury sustained in an automobile accident prior to plaintiff\u2019s employment with d\u00e9fendant employer. This prior injury did not arise while plaintiff was serving in the Army or Navy of the United States, or as the result of a compensable injury. Dr. Goldner opined that the 30 November 1972 injury aggravated the previous injury. He rated plaintiff as having a 35 percent permanent partial disability of the spine with 25 percent attributable to the prexisting injury and 10 percent attributable to aggravation by the subsequent injury at defendant\u2019s printing plant.\nThe hearing commissioner concluded that \u201c . . . because Dr. Goldner can definitely fix causation of the disability at 25% for a pre-existing condition and at 10% for the injury which is the subject of this action, the defendants should not be saddled with plaintiff\u2019s full disability. There must be a causal relationship between the injury and the disability and that relationship has been established by Dr. Goldner at a 10% disability of the back.\u201d From an award based on 10 percent permanent partial disability, plaintiff appealed to the full commission who adopted as its own, and affirmed, the opinion and award of the hearing commissioner. Plaintiff appealed to the Court of Appeals.\nPalmer, McMullen, Griffin & Pittman, P.A., by Richard L. Griffin, for plaintiff appellant.\nSpears, Spears, Barnes, Baker and Boles, by Alexander H. Barnes, for defendant appellees." }, "file_name": "0254-01", "first_page_order": 282, "last_page_order": 288 }