Hilliard v. Apex Cabinet Co.

Justice Meyer

dissenting.

I must respectfully dissent. At the outset, I must say that I fully concur with the position of the majority that in order to support a conclusion of disability, the Commission must find: (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’s incapacity to earn was caused by plaintiff’s injury. Based upon these findings, the Commission may make a conclusion of law that the claimant is “disabled” within the meaning of the Workers’ Compensation Act. Recognition by the hearing officers and the Commission of the necessity of such findings and based thereon an appropriate conclusion of law as to whether a claimant is disabled or not disabled would avoid needless and wasteful appellate review based upon allegations of inadequate and inappropriate findings and conclusions of law.

While recognizing that problem in the judgment and award in the case before us, I am compelled to say that I believe this Court should have proceeded to determine whether there is suffi *600 cient evidence in the record to support the finding of fact of the Deputy Commissioner, affirmed by the full Industrial Commission and the Court of Appeals, to the effect that plaintiff “does not have any permanent disability . . . The majority opinion fails to observe the principle of law that the findings of the Commission are conclusive on appeal when supported by competent evidence even though there is evidence to support a contrary finding. The evidence here overwhelmingly supports the finding that the plaintiff does not have any permanent disability. Mr. Hilliard was examined by three doctors. Two of the doctors found only nosebleeds and made no mention of any other symptoms. When the claimant saw Dr. Baggett on 25 July 1977, he was certified to return to work that day and had no permanent disability. He saw Dr. Sieker on 13 November 1978 and he had no symptoms at that time. Dr. Sieker was of the opinion that the glue fumes, paint fumes and wood dust were irritating to Mr. Hilliard’s respiratory system and would produce the symptoms of which Mr. Hilliard complained. Dr. Sieker determined that Hilliard should not return to work in that environment. Dr. Sieker’s conclusion, however, which fully supports the Commission’s finding that Mr. Hilliard had no permanent disability, is as follows:

I found no evidence of permanent damage to Mr. Hilliard, and did not consider him to be disabled from other types of work in a pollutant-free environment.

On cross-examination, Dr. Sieker further testified in pertinent part:

In my medical reports I found that Mr. Hilliard presented symptoms aggravated by occupational exposure, with no evidence of permanent damagé. . . .

As stated in my letter dated August 3, 1979, to Mr. McCain, I felt that Mr. Hilliard could work in environments which do not contain excessive amounts of fumes, chemicals and dust ....

Not only is there more than adequate evidence to support the Deputy Commissioner’s finding of no permanent disability, there is in my opinion insufficient evidence to support the Deputy Commissioner’s finding of an occupational disease. The “disease” found by the Deputy Commissioner was “respiratory symptoms.” *601 The description “respiratory symptoms” or “sensitivity syndrome” or words to that effect are the only terms used by the medical witness to describe Mr. Hilliard’s condition. Symptoms are nothing more than manifestations of an underlying causation. “Respiratory symptoms” is nothing but a term describing manifestations — manifestations which accompany any number of ordinary diseases of life such as emphysema, bronchitis, pneumonia, etc. “Sensitivity syndrome” is likewise used to describe the manifestations of exposure to such items as grass, household dust, detergents, and other agents which may not be even remotely related to conditions of the work place.

In my view, the Commission must address the question of whether “respiratory symptoms” is a compensable disease under our Workers’ Compensation Act. Since the claimant’s “disease” is not one of those specifically enumerated in G.S. § 97-53, in order to be compensable, it must fall within subsection (13) which specifically requires the presence of a “disease” and excludes “all ordinary diseases of life.” This section of the Act is meant to compensate for occupational diseases. If there is an identifiable “disease” which causes this claimant’s respiratory symptoms, that is another matter. Here there have been findings only of symptoms or sensitivity. The evidence before us suggests that the claimant suffers no permanent damage and that his “respiratory symptoms” are triggered not by disease but by agents peculiar to his work place. The medical evidence clearly suggests that a work place free of wood-glue fumes, paint fumes and wood dust would not trigger claimant’s symptoms.

I do not find the case of Little v. Food Service, 295 N.C. 527 , 246 S.E. 2d 743 (1978), apposite here. In that case, this Court found to be error the trial judge’s refusal to allow Mrs. Little to testify on her own behalf to the effect that she was unsuited for employment due to characteristics peculiar to herself. Here no question has been raised concerning the right of the claimant to testify in this regard. Indeed, in the case before us the claimant in fact testified that:

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 *602 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 am not familiar with the construction of homes but have seen houses framed. It is true that framing houses does not include painting until it comes to the finishing, which is what I’ve always done. I have not tried to do any construction work like from the start of a house, because I do not feel that I would be dependable because of my condition.

This was precisely the type of testimony that Mrs. Little was not permitted to give and which was the sole reason for the remand in Little .

Even the majority recognizes that the uncontradicted medical testimony establishes that plaintiff was physically capable of working in employment free from wood dust, paint and lacquer fumes and glue fumes. Because of the peculiar circumstances of this case, I do not believe that the claimant, on his testimony alone, can establish that he is “disabled.” The “disablement” here must be supported by medical testimony. The claimant’s condition here is not an objective condition discernible by visual observation of the Deputy Commissioner; it is a subjective condition which can be determined with reasonable certainty only by a medical expert. See Gillikin v. Burbage, 263 N.C. 317 , 139 S.E. 2d 753 (1965); Huskins v. Feldspar Corp., 241 N.C. 128 , 84 S.E. 2d 645 (1954); Singleton v. Mica Co., 235 N.C. 315 , 69 S.E. 2d 707 (1952).

For these reasons I would vote to affirm the decision of the Court of Appeals.

Justice COPELAND joins in this dissenting opinion.