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are subject to modification and technical correction prior to official
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authoritative.
NO. COA07-563
NORTH CAROLINA COURT OF APPEALS
Filed: 18 December 2007
CANDY STREZINSKI,
Employee,
Plaintiff-Appellant,
Cross-Appellee,
v. North
Carolina Industrial Commission
I.C.
File No. 326886
CITY OF GREENSBORO,
Employer,
and
KEY RISK MANAGEMENT
SERVICES,
Carrier,
Defendants-Appellees,
Cross-Appellants.
Appeal by plaintiff and cross-appeal by defendant from an
opinion and award of the Full Commission of the North Carolina Industrial
Commission entered 30 January 2007 by Commissioner Dianne C. Sellers. Heard in the Court of Appeals 15 November
2007.
Law
Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for
plaintiff-appellant/cross-appellee.
Smith
Moore, LLP, by Caroline H. Lock, for defendants-appellees/cross-appellants.
JACKSON, Judge.
Candy Strezinski (“plaintiff”) appeals the denial of her
workers’ compensation claim by the Full Commission of the North Carolina
Industrial Commission in its Opinion and Award dated 30 January 2007. The City of Greensboro (“defendant”) appeals
the denial of costs and attorney fees in the same Opinion and Award. For the reasons stated below, we affirm in
part and dismiss in part.
Plaintiff began her employment with defendant as a
telecommunicator, or 911 dispatcher, on 1 July 1997. Prior to applying for a position with defendant, plaintiff had
surgery to correct hearing loss which the doctor attributed to chronic ear
infections. Upon her application for
employment with defendant, plaintiff’s hearing was tested and the results
demonstrated no hearing loss.
At various times throughout her employment, plaintiff used
three types of telephone headset. Each
type was routed through an amplifier which was plugged into a computer console
at her workstation. Plaintiff had the
ability to control the volume of the amplifier.
In her position, plaintiff was exposed to 911 callers
yelling over her telephone headset, as well as police and fire sirens both
through the headset when she was speaking directly with emergency personnel and
over her computer console when she was using the headset to speak to 911
callers.
During the course of her employment, plaintiff continued to
suffer from ear infections and other ailments.
She also suffered bilateral conductive hearing loss and mild
sensorineural hearing loss in the left ear.
She underwent surgery in 2003 to correct her conductive hearing
loss. Although the surgery eliminated
all or most of her conductive hearing loss in the left ear, her mild
sensorineural hearing loss remained.
Plaintiff saw her doctor for hearing problems on 17 March
2003, the alleged date of “injury,” and first notified her supervisor about her
condition on 11 April 2003. A senior
claims representative informed plaintiff on 22 April 2003 that her claim
was denied. On 18 July 2003, plaintiff,
appearing pro se, filed a request that her claim be assigned for hearing
with the Industrial Commission.
Defendant responded 2 September 2003.
Plaintiff’s attorney filed a notice of the alleged accident and claim to
her employer on 11 November 2003. An
amended request for hearing was filed 14 November 2003.
In September 2004, plaintiff was promoted to a supervisory
position. Although her telecommunicator
duties lessened, she still was required to use a headset and perform
telecommunicator duties on an occasional basis, such as when the call center
was short-handed, extremely busy, or when she was relieving someone who was at
lunch or on a break.
At a hearing before a deputy commissioner on 25 January
2005, both plaintiff and the assistant director of communication
testified. It was not until after
appearing before the Industrial Commission that plaintiff sought medical
opinions about her hearing loss. On 28
January 2005, plaintiff saw Dr. John Mundy (“Dr. Mundy”), the doctor who had
performed her 2003 surgeries. Dr. Mundy’s
impression was that plaintiff’s audiogram was “not suggestive of primary noise-induced
hearing loss.” That same day, plaintiff
saw Dr. James Crossley (“Dr. Crossley”), who had performed her 1997
surgery. Dr. Crossley gave no opinion
at that time as to causation because he did not have the results of Dr. Mundy’s
audiogram. Dr. Mundy and Dr. Crossley
were deposed 1 March and 7 March 2005, respectively. At Dr. Crossley’s deposition, he agreed that given plaintiff’s
greater loss of hearing in lower frequencies, her hearing loss was not likely
due to noise exposure.
The deputy commissioner filed an opinion and award on 1 May
2006, granting plaintiff’s claim.
Defendant appealed to the Full Commission. On 30 January 2007, the Full Commission denied plaintiff’s
claim and declined to award costs and attorney fees to defendant. Plaintiff filed her notice of appeal on 21
February 2007; defendant filed its notice of appeal on 5 March 2007.
Plaintiff first argues that the Full Commission applied the
wrong standard of proof to an occupational disease hearing loss claim. We disagree.
This Court’s review of an award from the Full Commission is
“generally limited to two issues: (1) whether the findings of fact are
supported by competent evidence, and (2) whether the conclusions of law are
justified by the findings of fact.” Clark
v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005). This Court may set aside the Industrial
Commission’s findings of fact on appeal only when there is a complete lack of
competent evidence to support them, because the commissioners are the sole
judges of the credibility of the witnesses and the evidentiary weight to be
given to their testimony. Young v.
Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000). Findings of fact that are not challenged on
appeal are binding on this Court. See
Johnson v. Herbie’s Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118, disc.
rev. denied, 357 N.C. 460, 595 S.E.2d 760 (2003). In addition, findings of fact to which error is assigned but
which are not argued in the brief are deemed abandoned. See Myers v. BBF Printing Solutions,
___ N.C. App. ___, ___, 645 S.E.2d 873, 875-76 (2007) (citing N.C. R. App. P.
28(b)(6) (2007)). The Commission’s
conclusions of law, however, are reviewed de novo. Griggs v. Eastern Omni Constructors,
158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003).
Hearing loss that is caused by harmful noise in the
employment is a compensable occupational disease pursuant to North Carolina’s
Workers’ Compensation Act. N.C. Gen.
Stat. §97-53(28) (2005). In order to
recover for such hearing loss, plaintiff must establish facts to support a prima
facie case. To do so, she must
prove “(1) loss of hearing in both ears which was (2) caused by harmful
noise in [her] work environment.” McCuiston
v. Addressograph-Multigraph Corp., 308 N.C. 665, 667, 303 S.E.2d 795, 797
(1983) (emphasis added).
Plaintiff correctly cites McCuiston as establishing
the elements for her claim, but states that in order to prevail, she must prove
only that she has suffered hearing loss in both ears and that she was exposed
to harmful noise in her workplace. She
argues that, as McCuiston directs, once she has proven those elements,
the burden shifts to the employer to prove that the sound was of less than
ninety decibels. See id. However, as this Court recently stated,
“[i]t is well settled that, in order to establish a compensable occupational
disease, the employee must show a causal connection between the disease and the
claimant’s employment.” Kashino v.
Carolina Veterinary Specialists Med. Servs., ___ N.C. App. ___, ___, 650
S.E.2d 839, 841 (2007) (internal quotations omitted) (citations omitted). In McCuiston, the plaintiff
established such a prima facie case; therefore, the burden shifted to
the defendant. In the case sub
judice, if plaintiff failed to establish the element of causation,
defendant would not be required to prove the level of sound in the workplace.
Plaintiff has assigned error to many of the Full
Commission’s findings of fact. Those
not challenged or in support of which no argument is made in the brief are
binding on appeal.
The Full Commission made the following findings of fact
relating to the element of causation:
2. As
a child, plaintiff suffered from recurrent ear infections requiring treatment
by a physician. These problems
continued into adulthood. Plaintiff
also has a history of allergy to dust mites, and has experienced significant
problems with upper respiratory infections.
Plaintiff has been treated at the Karam Family Practice for ear
infections, sinusitis, bronchitis, acute labyrnthitis, upper respiratory
infections, allergic rhinitis, asthmatic bronchitis, pharyngitis, and bilateral
Eustachian tube dysfunction.
. . . .
11. Plaintiff uses a telephone headset to perform her job duties. . . . Each of [the three types of headsets plaintiff has used] is connected to an amplifier which plugs into the computer console or station at which plaintiff works. The amplifier has a volume control, which plaintiff is able to adjust throughout the day.
. . . .
16. During
the course of her employment with defendant, plaintiff has continued to suffer
problems with recurrent ear infections, upper respiratory infections,
sinusitis, bronchitis, labyrinthitis, and allergic rhynitis [sic].
17. Plaintiff
has been treated for these complaints on numerous occasions . . . .
. . . .
30. Plaintiff
returned to Dr. Mundy on January 28, 2005 . . . .
31. Dr.
Mundy opined that plaintiff’s audiogram was not suggestive of noise-induced
hearing loss. Dr. Mundy further
testified that it is unlikely that plaintiff’s sensorineural hearing loss was
caused by noise exposure, as noise induced hearing loss typically occurs to a
greater extent in the higher frequencies, whereas plaintiff’s hearing loss is
greater in the lower frequencies. While
Dr. Mundy testified that if plaintiff were exposed to greater than 90 decibels
of noise over an eight hour work shift on a daily basis, such exposure could
have contributed to her sensorineural hearing loss, he also made it clear that
it was possible but unlikely. Dr.
Mundy’s testimony remained that it is unlikely that plaintiff’s sensorineural
hearing loss is noise induced.
32. Plaintiff
treated with Dr. Crossly [sic] on January 28, 2005. Upon physical examination, plaintiff’s left tympanic membrane was
intact but thinner and slightly retracted.
The mobility of the ossicular chain was not as great as in the right
ear. Dr. Crossly [sic] subsequently
reviewed Dr. Mundy’s records, including the audiogram. Dr. Crossley opined that plaintiff’s
sensorineural hearing loss is probably caused by chronic ear infections, based
on the fact that plaintiff’s sensorineural hearing loss was greater in the
lower frequencies than in the higher frequencies. Dr. Crossley opined that plaintiff’s sensorineural hearing loss
is not likely due to noise exposure.
. . . .
34. Based
upon the greater weight of the evidence, including the testimony of Dr. Mundy
and Dr. Crossley, plaintiff has not suffered hearing loss from noise exposure.
These findings make clear that plaintiff has failed to
establish a causal link between her hearing loss and the alleged workplace
exposure. Accordingly, the Full
Commission’s conclusion that she had not suffered from occupational loss of
hearing within the meaning of section 97-53(28) was proper. Therefore, this argument is without merit.
Plaintiff next argues that the Full Commission’s findings of
fact and conclusions of law are not supported by competent evidence. We disagree.
Specifically, plaintiff challenges findings of fact numbers
7, 10, 11, 12, 13, 14, 16, 17, and 18.
She contends they are incomplete, incorrectly stated, irrelevant, or
otherwise not supported. “[I]t has long
been settled that in a Work[ers’] Compensation case the findings of fact by the
Industrial Commission . . . are conclusive on appeal when supported by
competent evidence, even though there is evidence that would have supported
findings to the contrary.” Hollman
v. City of Raleigh, 273 N.C. 240, 245, 159 S.E.2d 874, 877 (1968).
Moreover, “the Industrial Commission is not required to make
specific findings of fact on every issue raised by the evidence[;] it is required to make findings only on
crucial facts upon which the right to compensation depends.” Watts v. Borg Warner Auto., Inc., 171
N.C. App. 1, 5, 613 S.E.2d 715, 719, aff’d, 360 N.C. 169, 622 S.E.2d 492
(2005) (per curiam) (citing Gaines v. Swain & Son, Inc., 33 N.C.
App. 575, 579, 235 S.E.2d 856, 859 (1977)).
As noted supra, because plaintiff failed to establish causation,
the burden of proof as to sound levels in her workplace did not shift to
defendant. Therefore, to the extent
that the challenged findings of fact do not address sound levels, such findings
were not required. Further, the Full
Commission is the sole judge of the credibility of the witnesses and the
evidentiary weight to be given to their testimony. Young, 353 N.C. at 230, 538 S.E.2d at 914.
Having carefully reviewed the entire record in this case, we
hold that the challenged findings of fact are supported by competent
evidence. Therefore, this argument is
overruled.
In her final argument, plaintiff contends the Full
Commission erred in making only partial findings of fact and ignoring many of
the deputy commissioner’s findings of fact.
We disagree.
A deputy commissioner’s opinion and award may be appealed to
the Full Commission pursuant to North Carolina General Statutes, section 97-85,
which states in pertinent part: “If [timely notice is given], the full
Commission shall review the award, and . . . reconsider the evidence[.]” N.C. Gen. Stat. §97-85 (2005). Although this Court is limited on appeal to
determining whether the findings of fact are supported by competent evidence
and whether those findings of fact in turn support the conclusions of law, the
opinion and award of the deputy commissioner is fully reviewable upon appeal to
the Full Commission. Hobgood v.
Anchor Motor Freight, 68 N.C. App. 783, 785, 316 S.E.2d 86, 87 (1984). The Full Commission may weigh the same
evidence that was presented to the deputy commissioner and decide for itself
the weight and credibility of that evidence.
See id. The Full
Commission may even strike entirely the deputy commissioner’s findings of fact
even if no exception was taken to them.
Keel v. H & V, Inc., 107 N.C. App. 536, 542, 421 S.E.2d 362,
367 (1992).
Because the Full Commission was not bound by the deputy
commissioner’s findings of fact, this argument is without merit.
Defendant separately appeals the Full Commission’s denial of
costs and attorney fees, arguing the Full Commission erred in not finding that
plaintiff had prosecuted her claim without reasonable ground and abused its
discretion. We disagree.
We note that plaintiff contends this Court is without
jurisdiction to hear defendant’s appeal because the notice of appeal was not
timely filed pursuant to Rule 3 of the North Carolina Rules of Appellate
Procedure. Rule 3 governs how and when
appeals are taken in civil cases. This
is not a civil case; this is a direct appeal from an administrative
agency. As such, it is governed by Rule
18 which states: “The times and methods for taking appeals from an agency shall
be as provided in this Rule 18 unless the statutes governing the agency provide
otherwise, in which case those statutes shall control.” N.C. R. App. P. 18(b)(1) (2007). Chapter 97 of the North Carolina General
Statutes governs the Workers’ Compensation Act. North Carolina General Statutes, section 97-86 provides for the
timing of appealing a decision of the Full Commission. Therefore, the timeliness of defendant’s
appeal is governed by section 97-86, not Appellate Rule 3. See Winslow v. Carolina Conference Ass’n
of Seventh Day Adventists, 211 N.C. 571, 580, 191 S.E. 403, 408 (1937).
Section 97-86 states that the procedure for appealing from
the Full Commission “shall be as provided by the rules of appellate
procedure.” N.C. Gen. Stat. §97-86
(2005). The Opinion and Award at issue
was filed 30 January 2007. “Defendant
could, within thirty days from the date of the award, but not thereafter,
appeal from the decision of the Commission to the Court of Appeals.” Fisher v. E. I. Du Pont de Nemours,
54 N.C. App. 176, 177, 282 S.E.2d 543, 543 (1981) (citing N.C. Gen. Stat.
§97-86; N.C. R. App. P. Rule 18(b)).
The thirty days expired on 1 March 2007. Defendant’s notice of appeal is dated 5 March 2007. The notice of appeal was filed after the
expiration of the thirty-day period.
Although “[t]he statute . . . allows notice of appeal to be made within
thirty days after receipt of notice by registered or certified mail of the
award[, t]he record on appeal . . . is devoid of anything indicating that
notice of the award was so mailed. We
are bound by the record before us.” Fisher,
54 N.C. App. at 177 n. 1, 282 S.E.2d at 543.
Because defendant’s notice of appeal was not timely filed, this Court
did not obtain jurisdiction, therefore, defendant’s assignment of error must be
dismissed. See, e.g., Oliver
v. Williams, 266 N.C. 601, 605, 146 S.E.2d 648, 651 (1966); Higdon v.
Light Co., 207 N.C. 39, 40-41, 175 S.E. 710, 711 (1934); Brooks v.
Matthews, 29 N.C. App. 614, 615, 225 S.E.2d 159, 159 (1976).
For the foregoing reasons, we affirm the Full Commission’s
denial of plaintiff’s workers’ compensation claim.
Affirmed in part and dismissed in part.
Judges TYSON and STROUD concur.