All
opinions are subject to modification and technical correction prior to official
publication in the
NO.
COA08-241
Filed: 7 October 2008
LUE SINDA BROWNING MANN,
Employee,
Plaintiff,
v.
I.C.
File No. 413671
TECHNIBILT, INC.,
Employer,
ST. PAUL-TRAVELERS INSURANCE
COMPANY/CHARTER OAK FIRE
INSURANCE COMPANY –
INSURANCE,
Carrier,
Defendants.
Appeal
by defendants from Opinion and Award entered 14 December 2007 by Commissioner
Buck Lattimore for the North Carolina Industrial Commission. Heard in the Court of Appeals 10 September
2008.
No brief filed by
employee-plaintiff.
York Williams
Barringer Lewis & Briggs, LLP, by Stephen Kushner, for defendant-appellants
Technibilt, Ltd. and Hartford Insurance Company.
Hedrick, Gardner,
Kincheloe & Garofalo, L.L.P., by Samuel E. Barker, for defendant-appellee
St. Paul-Travelers Insurance Company/Charter Oak Fire Insurance Company.
TYSON,
Judge.
Technibilt,
Inc. (“Technibilt”) and Hartford Insurance (“
I. Background
Plaintiff
has been employed as a press welder at Technibilt since 1989. On or about 2 October 2003, plaintiff alleged
she sustained an injury and occupational disease. Technibilt and its insurance carrier at the
time, St. Paul-Travelers Insurance Company/Charter Oak Fire Insurance Company (“Travelers”),
denied liability pending receipt of plaintiff’s medical records.
Plaintiff’s
claim for bilateral carpal tunnel syndrome was later accepted, while plaintiff’s
claim of injury to her back, hip, and feet was denied. Travelers referred plaintiff to Dr. William
M. Pekman (“Dr. Pekman”). On 12 February
2004, Dr. Pekman recommended “a trial of non[-]operative treatment” and advised
plaintiff that if the non-operative treatment did not relieve her symptoms, she
may need to consider surgical decompression.
On 23
March 2005, plaintiff requested Travelers approve additional medical
treatment. On 1 April 2005,
On 10
January 2006, plaintiff requested the Commission to order a second medical
opinion with a hand specialist selected by plaintiff. Technibilt and Travelers requested the
Commission to deny plaintiff’s motion
for a second opinion and stated “[t]here is no valid, reasonable reason for a
change in treating physicians.” On 14
February 2006, the special deputy commissioner granted plaintiff’s motion for a
second opinion and ordered Technibilt and Travelers to provide plaintiff with a
“one-time evaluation with a hand specialist of plaintiff’s choice for
evaluation and treatment recommendations.”
On or
about 27 February 2006, Technibilt and Travelers appealed the special deputy
commissioner’s Order and requested
plaintiff’s claim be assigned for hearing. Technibilt and Travelers alleged that “[Travelers]
was not on the risk when [p]laintiff was last injuriously exposed to the
alleged hazards of her disease.”
On 31
May 2007, the deputy commissioner entered an Opinion and Award, which found “
The
Commission entered its unanimous Opinion and Award on 14 December 2007. The Commission found
II. Issues
Technibilt
and Hartford argue the Commission erred when it: (1) found that plaintiff’s last injurious
exposure occurred when Hartford was the carrier “on the risk” and (2) failed to
make any findings on whether Travelers was estopped from denying the compensability
of plaintiff’s claim.
III. Standard of Review
Our
Supreme Court has stated:
when reviewing Industrial Commission
decisions, appellate courts must examine “whether any competent evidence
supports the Commission’s findings of fact and whether [those] findings . . .
support the Commission’s conclusions of law.” The Commission’s findings of fact
are conclusive on appeal when supported by such competent evidence, “even
though there [is] evidence that would support findings to the contrary.”
McRae v. Toastmaster,
Inc., 358 N.C. 488, 496,
597 S.E.2d 695, 700 (2004) (quoting Deese v. Champion Int’l Corp., 352
N.C. 109, 116, 530 S.E.2d 549, 553 (2000); Jones v. Myrtle Desk Co., 264
N.C. 401, 402, 141 S.E.2d 632, 633 (1965)).
“[T]he
full Commission is the sole judge of the weight and credibility of the evidence
. . . .” Deese, 352 N.C. at 116,
530 S.E.2d at 553. The Commission’s
mixed findings of fact and conclusions of law and its conclusions of law
applying the facts are fully reviewable de novo. Hilliard v. Apex Cabinet Co., 305 N.C.
593, 595, 290 S.E.2d 682, 684 (1982); Cauble v. Soft-Play, Inc., 124
N.C. App. 526, 528, 477 S.E.2d 678, 679 (1996), disc. rev. denied, 345
N.C. 751, 485 S.E.2d 49 (1997).
IV. Last Injurious Exposure
Technibilt
and
Technibilt
and
16. Dr. Caulfield testified that plaintiff’s
press welder job with defendant is a substantial causative factor of plaintiff’s
bilateral carpal tunnel syndrome, and that persons who do that job have a
higher risk of developing carpal tunnel syndrome than members of the population
not similarly exposed. Dr. Caulfield recommended surgery on plaintiff’s right
hand first and then perhaps the left hand. Dr. Caulfield indicated that
plaintiff’s condition had gotten worse from 2003 to 2006 as plaintiff continued
to work for defendant and that a delay in surgery creates a risk of permanent
muscle weakness.
. . .
.
19. Since April 1, 2005, plaintiff’s
condition has continued to worsen as she continued working in her same position
for defendant. Plaintiff testified that the numbness and pain is worse and is a
nine or ten on a one to ten scale. The more baby seats plaintiff welds in a
day, the worse her symptoms are. Plaintiff testified that due to the numbness
in her hands she had difficulty combing her hair, talking on the telephone, and
driving to work.
20. Due to the worsening and severity of her
pain from continued employment with defendant since April 1, 2005, plaintiff
wishes to proceed with carpal tunnel surgery. However, plaintiff has been
unable to get her group insurance to approve the surgery even though defendants
have refused responsibility.
21. Prior to April 1, 2005, plaintiff’s
condition was not such that surgery was a necessity, nor did it cause plaintiff
any incapacity from work. Plaintiff’s condition progressed and was augmented
due to her continued employment with defendant following April 1, 2005. Since
then, plaintiff has been diagnosed with bilateral carpal tunnel syndrome as
opposed to only right carpal tunnel syndrome which has progressed to the point
of necessitating operative treatment.
22. Dr. Peltzer, Dr. Pekman, and Dr.
Caulfield are of the opinion that plaintiff’s employment with defendant caused
her condition and that if plaintiff continues such employment her condition is
likely to worsen or be aggravated.
23. The undersigned find that plaintiff’s
occupational disease was caused by her employment with defendant. Based upon
the greater weight of the evidence, the undersigned find that plaintiff’s
occupational disease was augmented and worsened by her employment with
defendant following April 1, 2005 when defendant Hartford Insurance came on the
risk for defendant. Therefore, defendant Hartford Insurance was on the risk at
the time of plaintiff’s last injurious exposure.
Technibilt
and
2. Pursuant to N.C. Gen. Stat. §97-57
where an occupational disease is compensable “the employer in whose employment
the employee was last injuriously exposed to the hazards of such disease, and
the insurance carrier, if any, which was on the risk when the employee was last
exposed under such employer, shall be liable”. Last injurious exposure is
defined as an exposure that proximately augmented the disease to any extent,
however slight. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 88,
301 S.E.2d 359, 362 (1985) (citing Haynes v. Feldspar Producing Co., 222
N.C. 163, 166, 169, 22 S.E.2d 275, 277, 278 (1942)); See also Caulder v.
Waverly Mills, 314 N.C. 70, 331 S.E.2d 646 (1985). The greater weight of
the evidence supports that plaintiff’s last injurious exposure to the
conditions of her job with defendant that caused or augmented her occupational
disease was after April 1, 2005 when Hartford Insurance Company came on the
risk for defendant. N.C. Gen. Stat. §97-57. Therefore, Hartford Insurance is
liable for plaintiff’s occupational disease beginning April 1, 2005.
N.C.
Gen. Stat. §97-57 (2005) states:
In any case where compensation is payable
for an occupational disease, the employer in whose employment the employee was
last injuriously exposed to the hazards of such disease, and the insurance
carrier, if any, which was on the risk when the employee was so last exposed
under such employer, shall be liable.
Our Supreme Court
defined the term “last injuriously exposed” to mean “‘an exposure which
proximately augmented the disease to any extent, however slight.’” Rutledge v. Tultex Corp., 308 N.C. 85,
89, 301 S.E.2d 359, 362 (1983) (quoting Haynes v. Feldspar Producing Company,
222 N.C. 163, 166, 169, 22 S.E.2d 275, 277, 278 (1942)).
A condition peculiar to the workplace
which accelerates the progress of an occupational disease to such an extent
that the disease finally causes the worker’s incapacity to work constitutes a
source of danger and difficulty to that worker and increases the possibility of
that worker’s ultimate loss. It
constitutes, therefore, a hazard of the disease as the term “hazard” is
commonly used.
Caulder v. Waverly
Mills, 314 N.C. 70, 75,
331 S.E.2d 646, 649 (1985); see also Fetner v. Granite Works, 251 N.C.
296, 301, 111 S.E.2d 324, 327-28 (1959) (“G.S. 97-57 creates an irrebuttable
presumption - a presumption of law. The
last day of work was the date of disablement and the last thirty days of work
was the period of last injurious exposure in the case at bar. The Commission may not arbitrarily select any
30 days of employment, other than the last 30 days, within the seven months[‘]
period for convenience or protection of any of the parties, even if there is
some evidence which may be construed to support such selection.” (Citations omitted)); Shockley v. Cairn
Studios, Ltd., 149 N.C. App. 961, 563 S.E.2d 207 (2002), disc. rev.
denied, 356 N.C. 678, 577 S.E.2d 888 (2003).
After
thorough review of the record on appeal, transcript, depositions, and plaintiff’s
medical records, we hold competent evidence in the record supports the
Commission’s challenged findings of fact.
McRae, 358 N.C. at 496, 597 S.E.2d at 700. These findings of fact, together with the
Commission’s other unchallenged findings of fact, support its conclusion of law
numbered 2.
V. Estoppel of Denying Compensability
Technibilt
and
“While
the Commission is not required to make findings as to each fact presented by
the evidence, it must find those crucial and specific facts upon which the
right to compensation depends so that a reviewing court can determine on appeal
whether an adequate basis exists for the Commission’s award.” Johnson v. Southern Tire Sales & Serv.,
358 N.C. 701, 705, 599 S.E.2d 508, 511 (2004) (citations omitted). Because competent evidence was presented on
whether Travelers was estopped from denying the compensability of plaintiff’s
claim, the Commission must address the issue of estoppel. See Purser v. Heatherlin Properties,
137 N.C. App. 332, 338, 527 S.E.2d 689, 693 (2000) (“[W]e remand this matter to
the Industrial Commission to consider whether the facts of this case support a
conclusion that the employer or the insurance carrier should be estopped from
denying coverage.”).
Here,
as in Purser, “the Industrial Commission failed to consider the
application of the doctrine of estoppel to the factual scenario at hand.” 137 N.C. at 338, 527 S.E.2d at 693. We remand this matter to the Commission for
further proceedings and to make findings of fact and conclusions of law
regarding all issues raised by the evidence upon which Travelers’s and
VI. Conclusion
Competent
evidence in the record on appeal supports the Commission’s findings of
fact. McRae, 358 N.C. at 496, 597
S.E.2d at 700. These findings of fact
support the Commission’s conclusions of law on the last injurious
exposure.
The
Commission erred when it failed to make findings of fact with respect to the
effect of Travelers’s acceptance of plaintiff’s claim. Johnson, 358 N.C. at 705, 599 S.E.2d
at 511. This matter is remanded for
findings of fact, conclusions of law, and a determination of whether Travelers
is estopped from denying the compensability of plaintiff’s claim.
Affirmed
in Part; Remanded in Part.
Judges
CALABRIA and ELMORE concur.