Huskins v. United Feldspar Corporation

84 S.E.2d 645 (1954)

241 N.C. 128

Jack HUSKINS, Employee v. UNITED FELDSPAR CORPORATION (Employer); Coal Operators Casualty Company (Carrier).

No. 233.

Supreme Court of North Carolina.

November 24, 1954.

*647 Charles Hughes, Newland, for plaintiff appellee.

Williams & Williams, Asheville, for defendant appellants.

BARNHILL, Chief Justice.

The plaintiff has failed to establish a compensable claim for disablement due to silicosis which arose within two years after his last injurious exposure to the hazards of free silica dust.

The Commission found as a fact that claimant is actually incapacitated by silicosis, and that his disablement occurred on 2 May 1946, the day he left the employment of Feldspar to accept a job with Phillips & Coulter. There is no sufficient evidence in the record to support this finding or a finding that he suffered disablement from silicosis at any time prior to 2 May 1948, the end of the two-year period next after his last injurious exposere. G. S. § 97-58.

There is no evidence in the record that plaintiff lost any time from his work due to silicosis. Although he testified that he left the employment of Feldspar in 1946 because he was not able to work, that the work of a mucker is hard work, and he did not have the strength to do what he was supposed to do, that he was short of breath and had a cough; he also testified that he had only lost about a week on several occasions on account of influenza, and that while he consulted his physician occasionally, he at no time during that period considered his cough, shortness of breath, or lung condition sufficiently serious to mention it to his physician.

There is no evidence in the record that his loss of time or his condition was due to silicosis. In 1952 he passed a Board of Health x-ray motor truck and decided he would stop and have his chest x-rayed. *648 It was thus that he learned, more or less by accident, that he was suffering from silicosis.

Due to the peculiar nature of the disease, the slow process of its development, the similarity of its symptoms to those of other diseases which affect the lungs, and for other reasons, a workman, whatever his actual physical condition may be, is not charged with notice that he has silicosis until and unless he is so advised by competent medical authority, and the time within which he must file his claim for compensation begins to run from the date he is so advised. G.S. § 97-58(b).

For the same reasons and in view of the requirements of the statute, we have held that evidence tending to establish "disablement", as that term is used in the statute in reference to silicosis, must be supported by medical testimony and "that the finding of the competent medical authority must be to the effect that disablement occurred within two years from the last exposure * * *." (Italics supplied.) Duncan v. Carpenter and Phillips, 233 N.C. 422, 64 S.E.2d 410, 414; Singleton v. D. T. Vance Mica Co., 235 N.C. 315, 69 S.E.2d 707. This record is devoid of such evidence.

It follows that the plaintiff has failed to offer evidence sufficient to support his claim.

In so holding we are advertent to the fact that Dr. Thomas testified that in his opinion plaintiff was then (at the time of the hearing) actually incapacitated from performing normal labor as a mucker in a mica mine, and that such disability occurred sometime prior to 11 February 1952. He testified further that:

"It is my opinion that it would be impossible to state how long before February 11, 1952, that he became disabled. * * * All I can say is that it happened sometime during that time and I cannot fix a time." He did not testify, however, that plaintiff is even now physically incapable of performing regularly the duties incident to the several employments he has had since he left Feldspar.

We are likewise advertent to the finding of the Commission "That the claimant is actually incapacitated by reason of silicosis from performing normal labor as a mucker in a feldspar mine, the last job in which he was remuneratively employed while exposed to the hazards of inhaling dust containing silica or silicates." In this connection it also found that plaintiff worked regularly at the various jobs he held after leaving Feldspar, and for more pay55¢ per hour with Feldspar, and $1.50 per hour with L. M. Carpenter and Associates, by whom he was employed at the time of the hearing.

The inability of plaintiff to perform normal labor as a mucker in a feldspar mine is not the test. Nor is the place of last exposure necessarily the last place he was remuneratively employed.

The difference in the statutory rule to be followed in ascertaining the amount of recovery in case of an industrial accident, on the one hand, and silicosis, asbestosis, or lead poisoning, on the other, has been fully discussed in former decisions of this Court. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426; Duncan v. Carpenter and Phillips, supra; Singleton v. D. T. Vance Mica Co., supra; Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797. Those opinions are written in clear and understandable language. No further clarification should be necessary. In view of our conclusion that plaintiff has failed to establish disablement occurring within two years next after his last injurious exposure to free silica dust, we would not so much as mention this phase of the case except for the fact it is apparent the Commission has misconstrued our decision in the Honeycutt case.

Suffice it to say that the statutory definition of disablement as used in respect to silicosis, G.S. § 97-54, is clear and unambiguous. There is no need for construction. The interpolation of other words, as the Commission has done, to discover its meaning is wholly unnecessary. There is *649 not the faintest suggestion in the statute that the Legislature intended to make "the last occupation in which remuneratively employed" and "the place of last injurious exposure" synonymous terms, or that "disablement," as that term is used in respect to silicosis and asbestosis, means disability to perform the duties of his employment at the place of his last exposure.

Had the Legislature intended to tie the measure of compensation to the wage the claimant was earning at the time of his last exposure and to make disablement mean "the event of becoming actually incapacitated because of silicosis from performing the duties of his employment at the place of his last injurious exposure," it could have so provided by simply using that language in lieu of "the last occupation in which remuneratively employed." If we had intended to so construe the statutory definition of "disablement," Denny, J., author of the opinion in the Honeycutt case, would have so stated in plain and explicit language that could not be misconstrued by Bench or Bar.

In the Honeycutt case the defendants conceded there was evidence to support the finding of disability within the meanof G.S. § 97-54. The contest there involved the measure of his recovery, and we held [235 N.C. 471, 70 S.E.2d 430] that "the last occupation in which remuneratively employed" has no reference to odd jobs a self-respecting employee, driven by stark economic necessity, will accept and attempt to perform so as to eke out a living for himself and his family rather than to become the recipient of charity or government aid.

We gave the term the liberal, practical and realistic construction required by the statute and to which an employee is entitled by concluding the language means just what it says. An employee is actually disabled by reason of silicosis when his condition has reached the stage that he is incapable of continuing to perform the normal labor incident to the employment in which he is then engaged, with substantial regularity, and which he would be able to perform were it not for his silicotic condition. This is the last job in which he was remuneratively employed within the meaning of the statute.

In that particular case, under the construction adopted by us, the wage he was earning at the place of last injurious exposure was the criterion. We adopted that wage as the measure of the plaintiff's recovery, not because it was the wage earned at the job of last injurious exposure, but for the reason it was earned in the last occupation in which the plaintiff was remuneratively employed. When this is understood, there should be no misconception of the opinion in that case.

The court below will remand this cause to the Industrial Commission with direction that it proceed in accord with this opinion. To that end the judgment entered in the court below is

Reversed.