# Hilliard v. Apex Cabinet Co.

> Supreme Court of North Carolina · May 4, 1982 · 305 N.C. 593

URL: https://www.frixlaw.com/law-library/cases/9598104

## Case

- **Full name:** CHARLES W. HILLIARD, Employee, Plaintiff v. APEX CABINET COMPANY, Employer, Defendant; AMERICAN MUTUAL LIABILITY COMPANY, Carrier, Defendant
- **Court:** Supreme Court of North Carolina
- **Decided:** May 4, 1982
- **Citations:** 305 N.C. 593; 290 S.E.2d 682; 1982 N.C. LEXIS 1331
- **Precedential status:** Published
- **Opinion:** Concurrence by Exum
- **Judges:** Branch, Copeland, Exum, Meyer
- **Cited by:** 629 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9598104

## How later opinions describe it (automated extraction)

- stating that “when the findings are insufficient to determine the rights of the parties, the court may remand to the Industrial Commission for additional findings”
- stating that “the Industrial Commission is the sole judge of the credibility of the witnesses and the weight to be given to their testimony”
- holding that occupational disease for personal sensitivities are not compensable

## Opinion text

Justice Exum
concurring.
Although concurring in the majority’s decision to reverse the Court of Appeals and to remand this case to the Industrial Commission, I would remand it with instructions that if the Commission believes the evidence claimant has offered, it should make an award that would compensate him for the diminution in his earning capacity to which all the evidence shows him entitled.
I agree with the majority that the Commission’s so-called finding of fact that “[p]laintiff does not have any permanent disability as a result of the injury” is a conclusion of law fully reviewable by this Court. My view, however, is that this conclusion is not only unsupported by other findings of the Commission, but that all the evidence shows claimant to have suffered a diminution in earning capacity as a result of an occupational disease. If this evidence is believed, he is entitled to be compensated. I disagree with the majority’s view that there is a conflict in the evidence which needs resolution by the Commission.
Dr. Sieker testified without contradiction that claimant had developed a “sensitivity” to dust, glue fumes, and paint fumes due to his long exposure to these things as a cabinet maker. These things were irritants to claimant’s respiratory system and caused him to suffer nasal congestion, nosebleeds, headaches and shortness of breath. Dr. Sieker recommended that claimant not return to his work environment, but his opinion was that claimant could work in other environments that are free “of fumes, chemicals and dust.”
Claimant testified, again without contradiction, that he had worked all of his adult life as either a farmer or a carpenter and was not qualified because of lack of education and training to do anything else. He said:
Q. Have you tried to do any other kind of work other than carpentry work that does not take you around a glue or paint *598 and lacquer fumes or wood dust? Do you know any other kind of work?
A. No, I haven’t been, but the reason, I don’t have any education and therefore I can’t, and then my age I can’t get no other type of work that will, that I can do other than carpentry work.
Q. Have you looked for other types of work?
A. Well, yes I have. And I just can’t find anything that I can do other than carpentry work.
In my adult life, I have not done any work except for farming and carpentry.
I have been offered other jobs, but they were all in cabinet work like the work that I’m not able to do. I have not gone out to seek any other jobs. I have not attempted to get a job doing carpentry work building houses because I’m not educated enough, and even a part-time carpenter, which I have tried, has to be around the painters, varnishers and a lot of sawing.
I do not interpret this testimony to mean that claimant has not looked for jobs other than carpentry work. Indeed, claimant said he had looked for such jobs and couldn’t find “anything that I can do other than carpentry work.” He then said that he had been offered other work making cabinets which he was not able to do. His statement then was, “I have not gone out to seek any other jobs.” Clearly when placed in context this statement means that claimant has not looked for other cabinet making jobs, for obvious reasons. He then says he has not looked for home building work and explains why. Claimant also testified that in order to somehow support himself he opened up his own cabinet shop as a sole proprietor so that he could work at will as he was able. He said, “When I develop these problems during the performance of my carpentry work, I just have to quit work until I get better. But I usually try to work when I’m able to.” Claimant’s last year’s salary (1977) at Apex Cabinet Company was $14,820. As sole proprietor in 1978 he earned $7,114.43 and in 1979, $5,679.79.
*599 The Commission has concluded that claimant has an occupational disease which conclusion is fully supported, if not mandated, by the evidence. In light of this conclusion, it is difficult to see what else plaintiff could do to prove that he has had a diminution in earning capacity as the result of an occupational disease. The evidence mandates this conclusion unless, of course, the Commission simply disbelieves it, a position which it does not seem to have taken. Rather, it seems to have taken, erroneously, the position that the evidence, even if believed, does not as a matter of law show that plaintiff’s diminution in earning capacity is compen-sable.
This is not a case where a claimant has sat back and done nothing to find other suitable work. This claimant has, by all the evidence, done the best he could, given the existence of his occupational disease, to minimize his loss. He should not be penalized because he has chosen to work as much as he is able in a sole proprietorship doing the only work which, according to all the evidence, he is qualified by education and training to do.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9598104. Public record. Not legal advice.