{ "id": 8523764, "name": "CARSON F. CALLOWAY v. SHUFORD MILLS and AMERICAN MUTUAL INSURANCE COMPANY", "name_abbreviation": "Calloway v. Shuford Mills", "decision_date": "1986-01-21", "docket_number": "No. 8510IC432", "first_page": "702", "last_page": "709", "citations": [ { "type": "official", "cite": "78 N.C. App. 702" } ], "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": "274 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "\"Change of condition\" can refer to an injured employee's physical capacity to earn." } ], "opinion_index": 0 }, { "cite": "301 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570785, 8570827, 8570675, 8570645, 8570715 ], "year": 1981, "pin_cites": [ { "parenthetical": "\"Change of condition\" can refer to an injured employee's physical capacity to earn." } ], "opinion_index": 0, "case_paths": [ "/nc/301/0720-04", "/nc/301/0720-05", "/nc/301/0720-02", "/nc/301/0720-01", "/nc/301/0720-03" ] }, { "cite": "270 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520300 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0191-01" ] }, { "cite": "292 S.E. 2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "relying on Little" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523975 ], "year": 1982, "pin_cites": [ { "parenthetical": "relying on Little" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0184-01" ] }, { "cite": "294 S.E. 2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "58 N.C. App. 720", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526068 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0720-01" ] }, { "cite": "246 S.E. 2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564809 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0527-01" ] }, { "cite": "290 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "683", "parenthetical": "identifying requisite findings to support conclusion of disability" } ], "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "pin_cites": [ { "page": "595", "parenthetical": "identifying requisite findings to support conclusion of disability" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "322 S.E. 2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "a finding that claimant's lung disease was caused by smoking \"and contributed to and aggravated by his cotton dust exposure\" required remand under Rutledge" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 621", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526083 ], "year": 1984, "pin_cites": [ { "parenthetical": "a finding that claimant's lung disease was caused by smoking \"and contributed to and aggravated by his cotton dust exposure\" required remand under Rutledge" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0621-01" ] }, { "cite": "325 S.E. 2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "A finding that both claimant's \"smoking history and his exposure to cotton dust were significant etiologic factors in the development of his lung disease\" satisfies Rutledge." } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522303 ], "year": 1985, "pin_cites": [ { "parenthetical": "A finding that both claimant's \"smoking history and his exposure to cotton dust were significant etiologic factors in the development of his lung disease\" satisfies Rutledge." } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0143-01" ] }, { "cite": "336 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "49-50", "parenthetical": "A physician testified: \"[S]he probably has obstructive impairment caused by cotton dust exposure,\" and \"I feel that there is an element of pulmonary impairment present which could have been contributed to by her cotton dust exposure.\"" } ], "opinion_index": 0 }, { "cite": "314 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686631 ], "year": 1985, "pin_cites": [ { "page": "570-71", "parenthetical": "A physician testified: \"[S]he probably has obstructive impairment caused by cotton dust exposure,\" and \"I feel that there is an element of pulmonary impairment present which could have been contributed to by her cotton dust exposure.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0566-01" ] }, { "cite": "283 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "106", "parenthetical": "former standard of causation" } ], "opinion_index": 0 }, { "cite": "304 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565283 ], "year": 1981, "pin_cites": [ { "page": "52", "parenthetical": "former standard of causation" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0044-01" ] }, { "cite": "301 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "369-70" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] } ], "analysis": { "cardinality": 728, "char_count": 16352, "ocr_confidence": 0.793, "pagerank": { "raw": 6.792551908364956e-08, "percentile": 0.41564083465870016 }, "sha256": "63e7cb54826737a02ff9be2e78d6fabf67ef70bcaa2ddb54753d6558399371f3", "simhash": "1:dcfb5fe91d2f140a", "word_count": 2569 }, "last_updated": "2023-07-14T22:39:04.225821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and COZORT concur." ], "parties": [ "CARSON F. CALLOWAY v. SHUFORD MILLS and AMERICAN MUTUAL INSURANCE COMPANY" ], "opinions": [ { "text": "BECTON, Judge.\nI\nPlaintiff, Carson Calloway, filed a claim under North Carolina\u2019s Workers\u2019 Compensation Act, seeking benefits for disability resulting from an occupational disease. A Deputy Commissioner concluded that Calloway was permanently partially disabled as a result of his chronic obstructive lung disease and awarded three hundred weeks of benefits plus medical expenses and costs. The Commission then modified this opinion and award to allow a credit for wages earned by Calloway since he was determined to be disabled. Defendants Shuford Mills and American Mutual Insurance Company appeal, contending the Commission erred in finding and concluding that: (1) Calloway had an occupational disease; (2) Calloway was permanently partially disabled; and (3) defendants were entitled to a credit only for wages earned by Calloway after he was found to be disabled. Although we find no error on the first two issues, we remand for further findings on the issue of defendants\u2019 entitlement to credit.\nII\nCarson Calloway was born on 28 April 1922 and attended school through the third grade. He worked in cotton textile mills for approximately thirty-four years between 1940 and 1982. During his employment, much of which was spent in the card room, he was exposed to respirable cotton dust. Calloway testified that he began smoking when he was ten or twelve years old and smoked \u201cat most\u201d one or one and one-half cartons per week. He quit smoking in 1948 because he was experiencing a cough in the mornings. He first noticed respiratory problems in the early 1960\u2019s, when he experienced shortness of breath. Initially, his symptoms were worse during the early part of the working week and seemed to improve on weekends. By 1978 to 1980, when he was working in the card room at Sure Spun (a Shuford Mills plant), symptoms troubled him throughout the week.\nIn 1980, after performing poorly on a company-administered breathing test, Calloway was sent to see two pulmonary specialists, Dr. Hart and Dr. Owens, the latter of whom was the only medical expert to testify in this case. Dr. Owens gave Calloway a physical examination and had pulmonary function tests performed. Dr. Owens concluded that Calloway had chronic obstructive pulmonary disease with chronic bronchitis and a 25% to 35% impairment of lung function, and he recommended that Calloway be placed in a working environment where he would not be exposed to cotton dust or other respirable irritants. In accordance with this recommendation, Calloway began to work in the packing room at Spun Set (another Shuford Mills plant). He was moved from that job to the synthetic card room in March of 1982, but the fumes from polyester processing irritated his breathing to the extent that on 7 March 1982, he was given a medical leave of absence. Subsequently, he was laid off, but he resumed working part time at Sure Spun in July 1982 as a night watchman.\nIll\nThe defendants first argue that the Commission erred in finding that claimant had an occupational disease. Under N.C. Gen. Stat. Sec. 97-53(13) (1985), an occupational disease is \u201c[a]ny disease . . . which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.\u201d In order for chronic obstructive lung disease to be an occupational disease, it is necessary to prove that\nthe occupation in question exposed the worker to a greater risk of contracting this disease than members of the public generally, and provided the worker\u2019s exposure to cotton dust significantly contributed to, or was a significant causal factor in, the disease\u2019s development. This is so even if other non-work-related factors also make significant contributions, or are significant causal factors.\nRutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 101, 301 S.E. 2d 359, 369-70 (1983); compare with Hansel v. Sherman Textiles, 304 N.C. 44, 52, 283 S.E. 2d 101, 106 (1981) (former standard of causation).\nThe Commission found that Calloway has chronic obstructive pulmonary disease. It also found that:\n20. Plaintiffs exposure to respirable cotton dust while employed with the defendant/employer was injurious to plaintiff and caused further injury to him by significantly aggravating the severity of his chronic obstructive pulmonary disease.\n* # *\n23. There is no mechanism which can separate quantitatively how much of plaintiffs chronic obstructive pulmonary disease was caused by his exposure to cotton dust versus his exposure to cigarette smoking versus his underlying susceptibility.\n24. As a result of chronic obstructive pulmonary disease which was caused by and significantly aggravated by plaintiffs exposure to cotton dust in his employment with defendant/employer, plaintiff is only able to perform sedentary or light work in a clean air environment.\n25. As of March 8, 1982, plaintiff was and remains permanently partially disabled as a result of chronic obstructive pulmonary disease that was due to, aggravated, augmented and accelerated by, causes and conditions peculiar to plaintiffs employment i.e. exposure to respirable cotton dust in an \u201cat risk\u201d area of the mill.\nDefendants assert that these findings are deficient in that they \u201cfailed to address the primary question of the actual cause of the claimant\u2019s chronic obstructive lung disease.\u201d Defendants misunderstand the currently applicable standard in this area. Rutledge expressly replaced the former standard of actual causation with a liberalized standard of causation whereby exposure to cotton dust need only be a significant causative or contributing factor in the disease\u2019s development.\nDr. Owens identified three causative factors of Calloway\u2019s chronic obstructive lung disease: (1) smoking (which he expressly discounted as a \u201cminor factor\u201d in the disease\u2019s development), (2) exposure to cotton dust, and (3) hyper-reactive airways disease, which is characterized by an abnormal amount of \u201creactivity\u201d \u2014 inflammation, smothering and bronchospasms \u2014 upon exposure to airways irritants. Dr. Owens testified that Calloway\u2019s exposure was probably one cause of his chronic obstructive pulmonary disease. He also testified:\nI would think that the greater part of his present obstruction is either caused by or aggravated by his occupational exposure.\nThis evidence is, in our estimation, sufficient to support the Commission\u2019s finding and conclusion to the effect that Calloway\u2019s \u201cexposure to respirable cotton dust while employed with the defendant employer . . . significantly [aggravated] the severity of his chronic obstructive pulmonary disease.\u201d Our Supreme Court recently deemed even more equivocal medical testimony sufficient to support a finding of significant contribution. See Harrell v. Harriet & Henderson Yarns, 314 N.C. 566, 570-71, 336 S.E. 2d 47, 49-50 (1985) (A physician testified: \u201c[S]he probably has obstructive impairment caused by cotton dust exposure,\u201d and \u201cI feel that there is an element of pulmonary impairment present which could have been contributed to by her cotton dust exposure.\u201d).\nFurthermore, we find the Commission\u2019s use of the language \u201csignificantly aggravating\u201d sufficient under Rutledge. See Gibson v. Little Cotton Mfg. Co., 73 N.C. App. 143, 325 S.E. 2d 698 (1985) (A finding that both claimant\u2019s \u201csmoking history and his exposure to cotton dust were significant etiologic factors in the development of his lung disease\u201d satisfies Rutledge.); cf. Adkins v. Fieldcrest Mills, Inc., 71 N.C. App. 621, 322 S.E. 2d 642 (1984) (a finding that claimant\u2019s lung disease was caused by smoking \u201cand contributed to and aggravated by his cotton dust exposure\u201d required remand under Rutledge). We note that the opinion and award of the Deputy Commissioner in the case at bar, and that of the Commission, were rendered subsequent to the filing of Rutledge.\nIV\nDefendants next argue the Commission erred in finding and concluding that Calloway\u2019s pulmonary impairment caused him to be permanently partially disabled. \u201cDisability\u201d is the \u201cincapacity 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 N.C. Gen. Stat. Sec. 97-2(9) (1985); see Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E. 2d 682, 683 (1982) (identifying requisite findings to support conclusion of disability). A claimant able to work and earn some wages, but less than he or she was receiving at the time of injury, is partially disabled. See Little v. Anson County Schools Food Service, 295 N.C. 527, 246 S.E. 2d 743 (1978). The burden of showing the existence and degree of disability is on the claimant. Hilliard. Disability is a legal conclusion, id., and, as such, will be binding on the reviewing court if supported by proper findings. See Priddy v. Cone Mills Corp., 58 N.C. App. 720, 294 S.E. 2d 743 (1982).\nDefendants argue that Calloway has not suffered a diminution in his wage-earning capacity as a result of an occupational disease because the evidence conclusively showed he had worked in the packing room at $5.51 per hour, a wage higher than he had ever before earned, after his impairing lung disease was diagnosed. We disagree. The Commission found without exception that Calloway performed unsatisfactorily at this job in the packing department because of \u201chis lack of concentration on the details that the job required.\u201d Calloway had only a third grade education. These and other findings, as well as the evidence, demonstrate that although he was capable of performing less skilled jobs at the mill, which he did for more than thirty years, he had difficulty in a position requiring greater skills. Individual, intellectual and vocational considerations may be taken into account on the issue of disability. See Hundley v. Fieldcrest Mills, Inc., 58 N.C. App. 184, 292 S.E. 2d 766 (1982) (relying on Little). Thus, it was not error for the Commission to conclude that Callo-way was permanently partially disabled.\nV\nThe defendants\u2019 final argument is that the Commission erred in allowing defendants a credit only for the wages actually earned by Calloway after he was found to be disabled. Calloway testified that he was rehired by defendant Shuford Mills as a night watchman in July 1982, working an average of eighteen hours per week at $4.96 per hour. Although the Deputy Commissioner found that Calloway had not worked since 7 March 1982 and therefore did not allow defendants any credit for wages earned by Calloway subsequent to that date, the Commission made the following modification in its opinion and award:\n[W]e note that the evidence is unclear concerning plaintiffs work history following the date he was determined to be permanently partially disabled. Under G.S. 97-30, the plaintiff is entitled to compensation at the rate of 662A\u2019s percent, the difference between his average weekly wage prior to disability and his average weekly wage immediately thereafter. The compensation allowed by Deputy Commissioner Bryant assumes plaintiff has earned no income since March 7, 1982. The record is unclear on this point. Defendants are entitled to a credit for any wages earned by plaintiff since that time.\nThe Commission granted defendants a credit \u201cfor any wages earned by plaintiff in the 300 weeks since March 8, 1982.\u201d\nDefendants argue that the Commission improperly based its award of credit upon Calloway\u2019s actual future earnings rather than his wage-earning capacity. Defendants rely on N.C. Gen. Stat. Sec. 97-30 (1985) which sets compensation for partial incapacity at two-thirds of the difference between a claimant\u2019s \u201caverage weekly wages before the injury and the average weekly wages which he is able to earn thereafter . . .\u201d for a maximum of three hundred weeks. (Emphasis added.) The defendants reason that the Commission\u2019s order will allow them a credit only if Calloway continues to work and will allow Calloway to select future employment without regard to his actual wage-earning capabilities. In our opinion, however, implicit in the Commission\u2019s finding that Calloway is entitled to compensation at two-thirds the difference between his wages prior to disability and \u201chis average weekly wages immediately thereafter\u201d is a finding that the wages actually earned by Calloway after 7 March 1982 were the wages he was capable of earning. In this connection, we note it was defendant Shuford Mills who rehired Calloway as a night watchman; presumably, they placed him in a job commensurate with his wage-earning capabilities. Furthermore, if at some future point defendants feel Calloway is no longer earning the wages he is capable of earning, the modification provisions of N.C. Gen. Stat. Sec. 97-47 (1985) are available to them. See Edwards v. Smith & Sons, 49 N.C. App. 191, 270 S.E. 2d 569 (1980), disc. rev. denied, 301 N.C. 720, 274 S.E. 2d 228 (1981) (\u201cChange of condition\u201d can refer to an injured employee\u2019s physical capacity to earn.).\nCalloway concedes, however, in both his brief and during oral argument, that his case should be remanded for more specific findings under G.S. Sec. 97-30. We agree that a remand is necessary for further findings on the issue of the wages earned by Calloway since 7 March 1982, so that the exact amount of credit may be set and compensation properly calculated. On remand, the Commission may reopen the proceedings to take additional evidence if it determines on the record that there is insufficient evidence to make further findings necessary to determine the proper amount of credit.\nAffirmed in part; vacated in part; and remanded.\nJudges Webb and COZORT concur.\n. Although defendants excepted to the Commission\u2019s findings as to Calloway\u2019s average weekly wage prior to his injury, they did not discuss that point in their brief, and that finding therefore is binding upon us. See N.C. Rules App. Proc., Rule 28(a).", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Charles R. Hassell, Jr., for plaintiff appellee.", "Hedrick, Eatman, Gardner & Kincheloe, by Hatcher Kinche-loe, Gregory C. York, and Martha W. Surles, for defendant appellants." ], "corrections": "", "head_matter": "CARSON F. CALLOWAY v. SHUFORD MILLS and AMERICAN MUTUAL INSURANCE COMPANY\nNo. 8510IC432\n(Filed 21 January 1986)\n1. Master and Servant 8 68\u2014 occupational exposure to cotton dust \u2014 significant aggravation of chronic obstructive pulmonary disease \u2014 evidence sufficient\nThe evidence was sufficient to support the Industrial Commission\u2019s finding and conclusion that plaintiffs exposure to respirable cotton dust while employed with defendant significantly aggravated the severity of his chronic obstructive pulmonary disease where the only medical expert to testify in the case identified as causative factors smoking, which he discounted as a minor factor, exposure to cotton dust, and hyper-reactive airways disease; testified that plaintiffs exposure was probably one cause of his chronic obstructive pulmonary disease; and testified that the greater part of plaintiffs present obstruction was either caused by or aggravated by his occupational exposure. N.C.G.S. 97-53(13) (1985).\n2. Master and Servant 8 68\u2014 chronic pulmonary disease \u2014 partial disability \u2014 subsequent employment at higher wage\nThe Industrial Commission did not err by concluding that a chronic pulmonary disease caused plaintiff to be permanently partially disabled, despite evidence that he worked in the packing room at a wage higher than he had ever before earned after his lung disease was diagnosed, because the Commission found without exception that plaintiff performed unsatisfactorily at that job because of his lack of concentration. N.C.G.S. 97-2(9) (1985).\n3. Master and Servant 8 69\u2014 chronic pulmonary disease \u2014 credit for wages earned after disability \u2014 remanded for further findings\nAn Industrial Commission award of compensation was remanded for further findings on the issue of wages earned after plaintiff was found to be disabled where the Commission gave defendant a credit for \u201cany wages earned by plaintiff\u2019 as a night watchman for defendant after he was given a medical leave of absence for his chronic obstructive pulmonary disease. N.C.G.S. 97-30, N.C.G.S. 97-47.\nAPPEAL by defendants from an opinion and award of the North Carolina Industrial Commission entered 16 November 1984. Heard in the Court of Appeals 29 October 1985.\nCharles R. Hassell, Jr., for plaintiff appellee.\nHedrick, Eatman, Gardner & Kincheloe, by Hatcher Kinche-loe, Gregory C. York, and Martha W. Surles, for defendant appellants." }, "file_name": "0702-01", "first_page_order": 734, "last_page_order": 741 }