All opinions are subject
to modification and technical correction prior to official publication in the
North Carolina Reports and North Carolina Court of Appeals Reports. In the
event of discrepancies between the electronic version of an opinion and the print
version appearing in the North Carolina Reports and North Carolina Court of
Appeals Reports, the latest print version is to be considered authoritative.
NORTH
CAROLINA COURT OF APPEALS
Filed:
15 January 2008
BILLY BOLICK, Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 429072
ABF FREIGHT SYSTEMS, INC.
Employer,
(Self-Insured),
Defendant.
Appeal
by plaintiff and defendant from an Opinion and Award filed 27 September 2006 by
the North Carolina Industrial Commission. Heard in the Court of Appeals 19
September 2007.
Huffman
Law Firm, P.A., by Richard L. Huffman, for plaintiff appellant-appellee.
Hedrick
Eatman Gardner & Kincheloe, LLP, by Neil P. Andrews and M. Duane Jones, for
defendant appellant-appellee.
McCULLOUGH,
Judge.
Defendant
appeals an Opinion and Award of the North Carolina Industrial Commission (“the
Commission”), finding plaintiff, Billy Bolick, permanently and totally disabled
and awarding him compensation pursuant to N.C. Gen. Stat. §97-29 (2005).
The
evidence before the Commission tended to show that plaintiff, who is now 73
years of age with a ninth grade education, was employed for roughly 30 years by
defendant, ABF Freight Systems, Inc. Plaintiff worked as a general laborer and
local route driver for defendant’s Charlotte terminal; his final day of work
was 30 September 1987. Five of defendant’s regular customers included
businesses that produced asbestos products. As part of his duties, plaintiff
loaded and unloaded freight and swept out trailers, which routinely contained
boxes and bags that became unsealed and released asbestos dust into the air.
The
evidence also showed that plaintiff smoked cigarettes for approximately
forty-two years and has a history of asthma.
On 30 September 1987, plaintiff retired from employment due to shortness
of breath and respiratory problems, which became worse with time. On 7 June
1993, plaintiff’s family doctor, Dr. Cutchin, found that plaintiff had multiple
pleural nodules and plaques on his lungs, consistent with asbestos exposure. On
or about 14 March 1994, after further
testing, Dr. Edward Landis diagnosed plaintiff with asbestosis and a Class II
impairment.
The
Commission first heard plaintiff’s claim for compensation on 14 May 1996,
following which an Opinion and Award was issued on 14 May 1997. Plaintiff was found to have asbestosis and
was awarded 104 weeks of compensation at the rate of $308.00 per week. Pursuant
to that order, plaintiff has undergone three follow-up medical examinations.
On
4 April 2002, plaintiff filed a Motion for Immediate Payment of Out-of-Pocket
Expenses for Medications Prescribed for Asbestos-Related Illness, which was
granted by a 4 June 2002 order from Special Deputy Commissioner Elizabeth
Maddox. Defendant did not comply with
this order nor did he seek to have the order stayed.
In
its most recent Opinion and Award, filed 27 September 2006, the Commission
found:
9. . . . Dr. Hayes felt plaintiff had an
obstructive condition that was classic in nature and that would require a
disability rating. Dr. Hayes stated that, by definition, asbestosis is a
restrictive condition, not an obstructive condition; however it can, in some
limited cases, appear obstructive on pulmonology testing. . . . Dr. Hayes stated that [he] could not
separate plaintiff’s asthmatic conditions and asbestos-related lung disease to
determine the cause of plaintiff’s impairment, although if plaintiff had no
other lung conditions other than the asbestosis related lung disease, Dr. Hayes
believed he could be capable of gainful employment. . . .
.
. . .
13. . . . [A]lthough
[plaintiff’s] medicines were prescribed in the late 1960s and early 1970s for
asthma as opposed to asbestosis there is medical evidence to support finding
that these medications do provide some relief for plaintiff’s work-related
condition.
The
Commission concluded that: (1) plaintiff has been totally and permanently
impaired since 14 March 1996 due to his age, education, work experience, as
well as asbestosis and a pre-existing lung condition; (2) plaintiff’s
impairment cannot be apportioned between occupational and non-occupational
causes; (3) plaintiff is entitled to continued compensation, pursuant to N.C.
Gen. Stat. §97-29, at a rate of $308.00 per week for the remainder of his life;
and (4) plaintiff is entitled, pursuant to §97-59, to have defendant pay for “medical expenses incurred, when timely submitted, or to be
incurred, as a result of plaintiff’s asbestos-related disease and asbestosis,
as may be required to monitor, provide relief, effect a cure or lessen
plaintiff’s period of disability.”
(Emphasis in original.)
Defendant
appeals, contending that the Commission erred by: (1) not apportioning the
extent of plaintiff’s disability between non-occupational factors and
occupational factors; and (2) requiring defendant to pay for prescription
expenses related to a non-occupational condition.
Plaintiff
cross-appeals, contending that the Commission erred by: (1) failing to
expressly rule on whether defendant is required to reimburse plaintiff for past
out-of-pocket medical expenses; and (2) not holding defendant in contempt for
its failure to comply with the 4 June 2002 order.
Appellate
review of an Opinion and Award of the Industrial Commission is “limited to
reviewing whether any competent evidence supports the Commission’s findings of
fact and whether the findings of fact support the Commission’s conclusions of
law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549,
553 (2000). The Commission is the sole judge
of the credibility of the witnesses and of the weight of the evidence. Watkins v. City of Asheville, 99 N.C.
App. 302, 392 S.E.2d 754, disc. review denied, 327 N.C. 488, 397 S.E.2d
238 (1990). As long as there is some
competent evidence to support the Commission’s determination, it is binding on
appeal even though the evidence might also support contrary findings. Id.
Defendant’s
Assignments of Error
a.
Apportionment of Award
Defendant
first contends that the Commission should have apportioned plaintiff’s award of
compensation based upon the portion of the disability caused by the
occupational-related asbestosis. We disagree.
It
is well settled that apportionment of compensation is appropriate where the
occupational disease in question “causes a worker to be partially physically
disabled, and other infirmities, acting independently of and not aggravated by
[the occupational disease], also cause the worker to be partially disabled[.]”
Rutledge v. Tultex Corp., 308 N.C. 85, 100, 301 S.E.2d 359, 369 (1983).
However, where there is no evidence attributing a percentage of the plaintiff’s
total incapacity to her compensable injury and to the non-compensable
condition, Errante v. Cumberland County Solid Waste Management, 106 N.C.
App. 114, 119-20, 415 S.E.2d 583, 586 (1992); or where the evidence before the
Commission is such that any attempted apportionment of the disability between
work-related and non-work-related causes would be merely speculative,
apportionment is not proper. Harrell v. Harriet & Henderson Yarns,
314 N.C. 566, 575, 336 S.E.2d 47, 52 (1985).
Here,
the Commission noted that they afforded greater weight to the testimony of Dr.
Allen Hayes than to Dr. Boehlecke and Dr. Dew regarding apportionment. While
Dr. Hayes testified that plaintiff primarily
suffered from an obstructive lung disease, classically associated with asthma
and cigarette smoking, he testified that plaintiff’s chest CT scan showed
evidence of pleural plaques as well as parenchymal fibrosis, which are
consistent with asbestosis, and stated that there is “no generally accepted
way” to apportion the causes of the reduced lung functioning. Further, in his
report of his evaluation of plaintiff, Dr. Hayes stated that “it is impossible
to apportion the relative contribution of” plaintiff’s work-related asbestosis
and non-work-related obstructive lung disease to his overall impairment.
Since
the Commission was entitled to give greater weight to the testimony of Dr.
Hayes, there is competent evidence in the record to support the Commission’s
finding that plaintiff’s disability could not reasonably be apportioned between
the work-related asbestosis and the other non-work-related lung disease. In
turn, the Commission’s findings of fact support its conclusion that defendant
is liable to compensate plaintiff for the entire disability. This assignment of
error is overruled.
Defendant
next contends that the Commission erred in ordering defendant to pay for
prescription expenses that treat both work- related and non-work-related
conditions. We disagree.
N.C.
Gen. Stat. §97-2 defines medical compensation to include any medicines “as may
reasonably be required to effect a cure or give relief and for such additional
time as, in the judgment of the Commission, will tend to lessen the period of
disability[.]” N.C. Gen. Stat.
§97-2(19) (2005). In interpreting
provisions of the Workers’ Compensation Act, we note that the legislature
intends “for the Workers’ Compensation Act to be construed liberally in favor
of the injured worker to the end that its benefits not be denied upon
technical, narrow or strict interpretation.” Harrell, 314 N.C. at 566,
578, 336 S.E.2d at 54. Even if the medical treatment will not lessen the period
of disability, the statute requires employers to pay for medical expenses, as
long as they are reasonably required to (1) effect a cure or (2) give relief. Little
v. Penn Ventilator Co., 317 N.C. 206, 210, 345 S.E.2d 204, 207 (1986).
Dr.
Hayes testified that the FDA has not approved medication specifically designed
to treat asbestosis and that plaintiff is treated with medication approved to
treat the symptoms of obstructive lung disease and to improve his “overall lung
functioning.” Based on this testimony,
there is competent evidence in the record to support the Commission’s finding
that plaintiff’s prescription medications provide some relief to plaintiff by
improving his overall lung functioning. Thus, it was proper for the Commission
to order defendant to pay for these medications. This assignment of error is
overruled.
Plaintiff’s
Assignments of Error
A.
Past Medical Expenses
Plaintiff
first contends that the Commission erred by failing to expressly rule on
whether defendant is required to reimburse plaintiff for past out-of-pocket
medical expenses. We agree.
The
Full Commission is charged with a duty “to make detailed findings of fact and
conclusions of law with respect to every aspect of the case before it.” Joyner
v. Rocky Mount Mills, 92 N.C. App. 478, 482, 374 S.E.2d 610, 613 (1988). In
Vieregge v. N.C. State University, 105 N.C. App. 633, 639, 414 S.E.2d 771,
774 (1992), we stated that pursuant to N.C. Gen. Stat. §97-85 (2005), a party
requesting review before the Full Commission and filing a Form 44 “is entitled
to have the full Commission respond to the questions directly raised by his
appeal.”
While
it appears from the emphasis in the Commission’s Opinion and Award, which
orders defendant to “pay medical expenses, when timely submitted,” as
well as from its decision not to hold defendant in civil contempt, that the
Commission implicitly ruled that plaintiff did not timely submit his request
for reimbursement of $1,965.13 in past out-of-pocket medical expenses, we find
that the better approach is to expressly respond to the issues raised by
plaintiff’s appeal. Therefore, we
remand for an explicit ruling as to whether defendant must reimburse plaintiff
for past out-of-pocket medical expenses.
Finally,
plaintiff contends that the Commission erred by: (1) not holding defendant in
contempt for its failure to comply with the 4 June 2002 order; and (2) not
making adequate findings of fact to support its conclusion that defendant
should not be held in civil contempt.
Where
a party fails to comply with the Workers’ Compensation Rules of North Carolina,
the Industrial Commission has discretionary authority to “subject the violator
to any of the sanctions outlined in Rule 37 of the North Carolina Rules of
Civil Procedure,” which includes finding the violator in contempt of court. N.C. Admin. Code tit. 4 r. 10A.0802 (June
2006); N.C. Gen. Stat. §1A-1, Rule 37 (2005).
We review discretionary decisions under an abuse of discretion standard
and will not disturb such decisions unless they are “manifestly unsupported by
reason.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
Plaintiff
contends that in order for the Commission to refuse to hold defendant in civil
contempt, the Commission was required by N.C. Gen. Stat. §5A-21(a), which
outlines the guidelines for determining when an individual is in civil
contempt, to make specific findings as to whether defendant was able to comply
with the order or if the violation was willful. N.C. Gen. Stat.
§5A-21(a)(2005). We disagree. Because civil contempt is a discretionary
sanction, even if the Commission made explicit findings that all of the
conditions outlined in §5A-21(a) were satisfied, the Commission would not be
required to sanction defendant.
As
previously discussed, due to the age of plaintiff’s medical bills, the
Commission appears to have implicitly rejected the 4 June 2002 order with
respect to past medical expenses.
Furthermore, the Commission also found that the prosecution of the claim
was reasonable and was not based on unfounded litigiousness. While we agree
with plaintiff that §5A-21(a) does not require the Commission to find
defendant’s claim to be based on unfounded litigiousness in order to hold
defendant in contempt, this finding is nonetheless a rational basis for the
Commission, in its discretion, to deny plaintiff’s motion for sanctions
pursuant to Rule 802. This assignment of error is overruled.
Accordingly,
the Opinion and Award of the Commission is affirmed in part and remanded for
additional findings.
Affirmed
in part; remanded for additional findings.
Judges
CALABRIA and STEPHENS concur.