{ "id": 8520841, "name": "ROBERT A. DONNELL, Employee v. CONE MILLS CORPORATION, Employer, Self-Insurer", "name_abbreviation": "Donnell v. Cone Mills Corp.", "decision_date": "1983-01-18", "docket_number": "No. 8210IC152", "first_page": "338", "last_page": "344", "citations": [ { "type": "official", "cite": "60 N.C. App. 338" } ], "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": "292 S.E. 2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "149" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525498 ], "year": 1982, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0619-01" ] }, { "cite": "286 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "576" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527802 ], "year": 1982, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0663-01" ] }, { "cite": "188 S.E. 2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574896 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0300-01" ] }, { "cite": "285 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566432, 8566530, 8566571, 8566461, 8566494 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0196-01", "/nc/304/0196-04", "/nc/304/0196-05", "/nc/304/0196-02", "/nc/304/0196-03" ] }, { "cite": "280 S.E. 2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521129 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0341-01" ] }, { "cite": "67 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "234 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623071 ], "year": 1951, "pin_cites": [ { "page": "447-48" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0446-01" ] }, { "cite": "232 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "292 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567907 ], "year": 1977, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0210-01" ] }, { "cite": "285 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "827" } ], "opinion_index": 0 }, { "cite": "304 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570404 ], "year": 1982, "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0670-01" ] }, { "cite": "290 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "683" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "595" }, { "page": "599" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "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": "256 S.E. 2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "297 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573538 ], "year": 1979, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0636-01" ] } ], "analysis": { "cardinality": 646, "char_count": 13132, "ocr_confidence": 0.834, "pagerank": { "raw": 2.8054885555995975e-07, "percentile": 0.8371648308453504 }, "sha256": "71bbf4f8920d73bc8a60f0c1ee7999a882ace16ed1e1484bfbb1b10358900145", "simhash": "1:98006c83258f4e91", "word_count": 2184 }, "last_updated": "2023-07-14T17:52:46.639047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Braswell concur." ], "parties": [ "ROBERT A. DONNELL, Employee v. CONE MILLS CORPORATION, Employer, Self-Insurer" ], "opinions": [ { "text": "ARNOLD, Judge.\nDEFENDANT\u2019S APPEAL\nThe substantive issue on this appeal is whether plaintiff\u2019s earning capacity was reduced as a result of byssinosis contracted while working for the defendant. If so, then he is disabled under G.S. 97-2(9) and our case law. See, e.g., Wood v. Stevens & Co., 297 N.C. 636, 651, 256 S.E. 2d 692, 701 (1979). Because byssinosis is an occupational disease under G.S. 97-53(13), it is compensable under G.S. 97-52.\nThe burden of proof of showing a disability is on the plaintiff. Hall v. Chevrolet Co., 263 N.C. 569, 139 S.E. 2d 857 (1965). To conclude that plaintiff is disabled because of a lack of earning capacity, the Industrial Commission must find\n(1) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in the same employment, (2) that plaintiff was incapable after his injury of earning the same wages he had earned before his injury in any other employment, and (3) that this individual\u2019s incapacity to earn was caused by plaintiff\u2019s injury.\nHilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E. 2d 682, 683 (1982). If the Commission makes these findings, and they are supported by competent evidence, they are conclusive on appeal even though there is evidence to support a contrary finding. Walston v. Burlington Industries, 304 N.C. 670, 677, 285 S.E. 2d 822, 827 (1982). The conclusions of the Commission will not be disturbed if justified by the findings of fact. Inscoe v. Industries, Inc., 292 N.C. 210, 216, 232 S.E. 2d 449, 452 (1977). To decide this case, we must determine if plaintiff has met the three prongs of the Hilliard test.\nPlaintiff met the first element of the test by showing that he could not earn the same wages working for defendant after his disease as he earned before it. Consistent with his conclusion that plaintiff has byssinosis, Dr. Sieker stated that plaintiff should not work in a dusty environment, that he \u201cwould not tolerate strenuous or sustained exercise in a work environment,\u201d and that he had evidence of permanent impairment of his pulmonary functions.\nFinding of fact number eight that plaintiff could not take another job with defendant because he could not pass a breathing test is supported by competent evidence. Both plaintiff and Sieker testified that he was not given a new job with defendant because of his breathing problems.\nAlthough plaintiff did begin work at another job two months after his job with defendant ended, he cleared the second hurdle of Hilliard. The findings of Deputy Commissioner Denson as adopted by the Full Commission show that plaintiffs earning capacity in any other employment was reduced as a result of his disability.\nStipulation number four in the 31 October 1980 award states that plaintiffs average weekly wage was $194.19 when he worked for defendant. Finding of fact number eight lists the highest salary at his new job as $3.85 an hour for a 40-hour week. Although the award did not calculate his highest salary in the new job, it did conclude that plaintiff was disabled and calculated what amounts were due to him as a result of his disability.\nSimple multiplication reveals that plaintiffs maximum weekly wage at the new job was $154.00. This is considerably less than what plaintiff earned while working for the defendant. Although comparing before and after earnings is not the method to show diminished earning capacity, Hill v. Dubose, 234 N.C. 446, 447-48, 67 S.E. 2d 371, 372 (1951), we believe that it is a factor to be considered.\nGiven plaintiffs physical condition, the limits on his ability to work and his lack of training in any job except the textile industry, we hold that there was competent evidence before the Industrial Commission to find that plaintiff was disabled from byssinosis. This conclusion avoids the \u201cneedless and wasteful appellate review based upon allegations of inadequate and inappropriate findings and conclusions of law\u201d that Justice Meyer decried in his separate opinion in Hilliard. See 305 N.C. at 599, 290 S.E. 2d at 686. We refuse to require magic words in an award of the Industrial Commission before it will be affirmed.\nAn examination of the record reveals that plaintiff\u2019s diminished earning capacity is linked to his disease. Based on evidence discussed above, this third and final prong of the Hilliard test is present here.\nDefendant cites Mills v. Stevens & Co., 53 N.C. App. 341, 280 S.E. 2d 802, disc. rev. denied, 304 N.C. 196, 285 S.E. 2d 100 (1981), in support of its position. The court in Mills affirmed the Industrial Commission\u2019s conclusion that the plaintiff was not disabled and did not have an occupational disease. The plaintiff in that case was unemployed for six months between his job with the defendant and a new job.\nBut Mills can be distinguished on its facts. The plaintiff there did not meet his burden of proof on the disability issue and the Commission held against him. The case sub judice is different because there is sufficient competent evidence in the record to support the Commission\u2019s findings for the plaintiff. For example, there was no finding of fact in Mills as to plaintiff\u2019s salary when he worked with the defendant, while that fact is stipulated here.\nOur decision does not ignore that plaintiff\u2019s job with the defendant ended because the plant where he worked was closed. But we do not believe this to be dispositive on the disability issue. The crucial fact is that plaintiff\u2019s earning capacity was diminished because he developed the occupational disease of byssinosis during his employment with the defendant.\nThe Workers\u2019 Compensation statutes in North Carolina should be liberally construed to effect their purpose of compensating injured claimants and recovery should not be denied by a technical or narrow construction. Stevenson v. Durham, 281 N.C. 300, 188 S.E. 2d 281 (1972). We believe that this decision and its interpretation of \u201cdisability\u201d under G.S. 97-2(9) is in accord with that general rule and does not enlarge the statute beyond its limits.\nPlaintiff\u2019s Appeal\nPlaintiff appealed that part of the Commission\u2019s award which struck the attorney\u2019s fee awarded under G.S. 97-88.1 and reduced the total fee to $1,500, which is to be deducted from his award. The Deputy Commissioner had awarded plaintiff s attorneys $1,226.96 under G.S. 97-88.1 because she found that the hearing was defended without reasonable ground, and an additional $1,200 fee to be deducted from the award.\nG.S. 97-88.1, which was added by 1979 N.C. Sess. Laws Ch. 268, \u00a7 1, states:\nIf the Industrial Commission shall determine that any hearing has been brought, prosecuted, or defended without reasonable ground, it may assess the whole cost of the proceedings including reasonable fees for defendant\u2019s attorney or plaintiffs attorney upon the party who has brought or defended them.\nUnder the statute, \u201cThe test is not whether the defense prevails, but whether it is based in reason rather than in stubborn, unfounded litigiousness.\u201d Sparks v. Restaurant, 55 N.C. App. 663, 665, 286 S.E. 2d 575, 576 (1982).\nBecause the Commission struck the G.S. 97-88.1 award, it must have concluded that the defense was based on reasonable ground. Since our examination of the record leads us to a similar conclusion, we affirm the Commission\u2019s decision on this matter. See Robinson v. Stevens & Co., 57 N.C. App. 619, 627, 292 S.E. 2d 144, 149 (1982).\nWe find no error in the Commission\u2019s reduction of plaintiffs total attorney\u2019s fees. This matter is subject to the approval of the Commission under G.S. 97-90(a) and will not be disturbed on appeal absent an abuse of that discretion.\nThe order of the Industrial Commission appealed from is\nAffirmed.\nJudges Johnson and Braswell concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, by J. Levonne Chambers, for plaintiff.", "Smith, Moore, Smith, Schell & Hunter, by J. Donald Cowan, Jr. and Caroline Hudson, for defendant." ], "corrections": "", "head_matter": "ROBERT A. DONNELL, Employee v. CONE MILLS CORPORATION, Employer, Self-Insurer\nNo. 8210IC152\n(Filed 18 January 1983)\n1. Master and Servant \u00a7 68\u2014 workers\u2019 compensation \u2014 reduced earning capacity from byssinosis\nPlaintiff\u2019s earning capacity was reduced as a result of byssinosis contracted while working for defendant, and plaintiff was thus disabled from byssinosis, where the evidence showed that plaintiff could no longer work in a dusty environment and thus could not earn the same wages working for defendant after his disease as he earned before it; after the plant at which plaintiff worked was closed, he was not offered another job with defendant at a different plant because he could not pass the breathing test; plaintiffs earning capacity in other employment was reduced as a result of his disability; and he is earning less in his employment in a clean environment than he earned with defendant. G.S. 97-2(9).\n2. Master and Servant \u00a7 99\u2014 workers\u2019 compensation \u2014striking attorney\u2019s fee for plaintiff\nThe Industrial Commission did not err in striking an award of an attorney\u2019s fee for plaintiff under G.S. 97-88.1 since the claim was defended on a reasonable ground. Nor did the Commission err in the reduction of plaintiffs total attorney\u2019s fee. G.S. 97-90(a).\nAppeal by both parties from opinion and award of the North Carolina Industrial Commission filed 7 December 1981. Heard in the Court of Appeals 8 December 1982.\nThis case arose when plaintiff, a 54-year-old man, made a claim for byssinosis in 1980. Plaintiff worked for defendant from 13 July 1945 to 2 August 1976 in the carding department, except for approximately three years of military service from 1946 to 1949. He worked in the defendant\u2019s weaving department from 2 August 1976 until 15 June 1978 when the plant at which he worked closed.\nDuring his employment with the defendant, plaintiff was exposed to cotton dust. He first began to have breathing problems in the 1950\u2019s. As time progressed, his symptoms got worse.\nAfter his employment with the defendant ended, plaintiff did not get a job until 14 August 1978. He was promised another job with the defendant at a different plant but was rejected, apparently because he could not pass the breathing test. Plaintiff testified that he looked for other jobs during that time interval.\nOn 14 August 1978, plaintiff began work at Carolina Fabric Label Corporation where he operates a labeling machine. His job performance there has been good and he only missed three days of work during 1979 and the first six months of 1980. He was employed at Carolina Fabric when this case was heard before the deputy commissioner on 9 June 1980.\nPlaintiff was examined by Dr. E. W. Stevens of Greensboro in 1978 after he stopped working for the defendant. Stevens\u2019 diagnosis was mild chronic obstructive pulmonary disease with a history of byssinotic reaction. Dr. Stevens gave plaintiff a note suggesting that he return to work immediately but avoid undue dust.\nDr. Herbert 0. Sieker of Duke University Medical Center examined plaintiff in March, 1979. His diagnosis was byssinosis with permanent impairment of the pulmonary functions. Lung capacity was seventy-five percent of normal. Dr. Sieker concluded that plaintiff should not work in the mill where there is any exposure to dust. According to Sieker, plaintiff is 100 percent limited for any heavy work or working in a dusty environment. But he added that plaintiff could work in a clean environment with moderate activity and suffer no disability.\nFollowing a hearing on 9 June 1980, Deputy Commissioner Christine Y. Denson entered an opinion and award on 31 October 1980. She found that plaintiff was temporarily totally disabled from 15 June 1978 to 14 August 1978 and that he is permanently partially disabled as a result of byssinosis. The permanent partial disablement caused a loss of income of $54.19 per week from 14 August 1978 to 1 July 1979 and $40.19 per week from 1 July 1979 to the date of the award. The loss of income was a result of the fact that plaintiffs income at Carolina Fabric is less than it was when he worked for the defendant.\nThe award gave plaintiff $129.46 per week from 15 June 1978 to 14 August 1978, $36.13 per week from 14 August 1978 to 1 July 1979 and $26.80 per week from 1 July 1979 to the date of the award subject to a maximum of 300 weeks and to a change in condition. An attorney\u2019s fee of $1,200 for plaintiffs counsel was to be deducted from the award. Defendant also was ordered to pay plaintiffs counsel $1,226.96 under G.S. 97-88.1 because defendant did not stipulate as to liability. This amount was not to be deducted from the award. Defendant was to pay plaintiffs medical bills that resulted from his occupational disease and the costs of the action. Both parties appealed to the Full Commission.\nOn 7 December 1981, the Full Commission adopted all of the deputy commissioner\u2019s opinion and award except for the portion concerning attorney\u2019s fees. The Commission struck the fee paid pursuant to G.S. 97-88.1 and substituted a fee of $1,500 to be deducted from the award. Both parties appealed to this Court, with plaintiff appealing only the portion that reduced his attorney\u2019s fees.\nChambers, Ferguson, Watt, Wallas, Adkins & Fuller, by J. Levonne Chambers, for plaintiff.\nSmith, Moore, Smith, Schell & Hunter, by J. Donald Cowan, Jr. and Caroline Hudson, for defendant." }, "file_name": "0338-01", "first_page_order": 370, "last_page_order": 376 }