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and technical correction prior to official publication in the North Carolina
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NO. COA03-1651
NORTH CAROLINA
COURT OF APPEALS
Filed: 16
August 2005
EILEEN
C. PAYNE, Administratrix
of
the Estate of HERBY S. PAYNE,
Deceased,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 610609
CHARLOTTE
HEATING & AIR
CONDITIONING,
Employer,
EMPLOYERS
MUTUAL INSURANCE
COMPANY,
Carrier,
and/or
ROSS
AND WITMER, INC.,
Employer,
TRAVELERS
INSURANCE COMPANY,
Carrier,
Defendants.
Appeal by defendants Ross and Witmer, Inc. and Travelers Insurance Company from Opinion and Award of the North Carolina Industrial Commission entered 14 July 2003. Heard in the Court of Appeals 12 October 2004.
Wyrick,
Robbins, Yates & Ponton, L.L.P., by K. Edward Greene and Kathleen A. Naggs;
Wallace & Graham, P.A., by Mona Lisa Wallace, Richard L. Huffman; and M.
Reid Acree, for plaintiff-appellee.
Nexsen, Pruet,
Adams, Kleemeier, P.L.L.C., by Sean M. Phelan, for defendants-appellees
Charlotte Heating & Air Conditioning and Employers Mutual Insurance
Company.
Hedrick,
Eatman, Gardner & Kincheloe, L.L.P., by C. J. Childers, for
defendants-appellants Ross and Witmer, Inc. and Travelers Insurance Company.
GEER, Judge.
This appeal
arises out of Herby S. Payne’s workers’ compensation claim for disability
benefits based on asbestosis.
Subsequent to the hearing on his claim, but before a decision was
rendered, Mr. Payne died and his wife Eileen C. Payne, the administratrix of
his estate, was substituted as plaintiff.
Defendants Ross and Witmer, Inc. (“R&W”) and Travelers Insurance
Company have appealed from the Industrial Commission’s opinion and award (a)
granting total disability benefits for a period preceding Mr. Payne’s death and
death benefits under N.C. Gen. Stat. §97-39 (2003) and (b) finding that Mr.
Payne was last injuriously exposed to the hazards of asbestosis while employed
at R&W.
The primary
issues on appeal are whether the death benefits claim was properly before the
Commission and, if so, whether it is time-barred by N.C. Gen. Stat. §97-61.6
(2003). We hold that the Full
Commission had authority to decide the death benefits claims. Further, because we have concluded that N.C.
Gen. Stat. §97-61.6 violates the Equal Protection Clause, we hold that the
claim for death benefits was timely.
With respect to defendants’ arguments regarding the merits of
plaintiff’s claim for benefits, since the Commission’s findings are supported
by competent evidence, the appropriate standard of review compels that we
affirm the Commission’s opinion and award.
Facts
Mr. Payne
worked at Charlotte Heating & Air Conditioning from 1960 through 1966. He was responsible for servicing furnaces and
boilers, during the course of which he was exposed to asbestos products. Mr. Payne mixed “asbestos mud” by pouring
asbestos powder into buckets and adding water.
He used the mud to repair boilers and insulate pipes. He also worked with asbestos rope and
asbestos millboard, cutting it to size and installing it. Although he was, as a result, exposed to
airborne asbestos dust, he was not provided and never used any form of
respiratory protection.
After working
for other companies in positions not involving significant asbestos exposure,
Mr. Payne was employed by R&W from 1972 to 1975. At R&W, Mr. Payne primarily fabricated and installed duct
work from sheet metal, but he also “set some furnaces.” At one point during his employment with
R&W, Mr. Payne worked on an apartment complex construction project
involving furnace installations in 160 to 170 apartment units. Each furnace was surrounded by asbestos
millboard and asbestos cloth. Mr. Payne
was the supervisor of the crew and the Commission found was exposed to airborne
asbestos dust without having respiratory protection.
After Mr.
Payne’s employment with R&W ended, his subsequent jobs did not expose him
to asbestos products to any significant extent. In 1989, Mr. Payne developed back problems that required
surgery. After the surgery, he remained
symptomatic and did not return to work, but rather began receiving Social
Security disability. Mr. Payne and his
wife both testified that ultimately his back symptoms were no longer the cause
of his disability.
In January
1994, Mr. Payne saw a pulmonologist regarding a notable worsening of his
ability to breathe. Mr. Payne had
smoked one to two packages of cigarettes daily until quitting in 1993. Pulmonary function studies indicated very
severe obstructive lung disease and severe emphysema. Upon further x-rays and examinations, Mr. Payne was diagnosed
with emphysema, asbestosis, and pleural plaques related to asbestos
exposure. Two National Institute of
Occupational Safety and Health (“NIOSH”) certified “B readers,” who evaluate
whether workers exposed to dust in their work environments have dust-related
disease, also found that Mr. Payne had asbestosis or disease related to
asbestos exposure. A third certified “B
reader” found pulmonary abnormalities caused by asbestosis, but concluded that
asbestos exposure probably did not contribute to Mr. Payne’s pulmonary
impairment.
In February
1996, Mr. Payne filed an Industrial Commission Form 18B seeking total
disability benefits based on asbestosis.
A hearing was conducted on Mr. Payne’s claim on 3 May 2000 by deputy
commissioner Morgan S. Chapman. On 16
October 2000, Mr. Payne died. The
deputy commissioner ultimately ordered that the record remain open until 15
September 2001, almost a year later. On
21 November 2001, the deputy commissioner issued an opinion and award,
sustaining defendants’ objection to any ruling on the issue of death benefits;
holding that, in any event, death benefits were barred by N.C. Gen. Stat.
§97-61.6; and finding that Mr. Payne did not contract asbestosis and did not
suffer any disability as a result of his exposure to asbestos.
On 14 July
2003, the Full Commission filed an opinion and award, finding that the issue
was properly before the Commission; that Mr. Payne did indeed have asbestosis;
that his asbestosis caused his total disability and significantly contributed
to his death; and that his last injurious exposure occurred during his
employment with R&W. Accordingly,
the Commission awarded total disability compensation from 19 October 1999
through 16 October 2000 and death benefits under N.C. Gen. Stat. §97-39. Defendants R&W and Travelers have
appealed.
I
Defendants
first contend that the issue of death benefits was not properly before the
Commission for determination. When a hearing
was first requested, Mr. Payne was still alive. He died after the hearing, but prior to the entry of the deputy
commissioner’s opinion and award. On 28
February 2001, the deputy commissioner substituted Mrs. Payne, the
administratrix for Mr. Payne’s estate, as plaintiff and, on 6 September 2001,
Mrs. Payne filed an amended Form 18B to assert a claim for death benefits.[Note
1] The Full Commission concluded
that as a result of the amended Form 18B, “the issue of decedent’s eligibility
for death benefits is before the Full Commission.”
Defendants
contend that the amended Form 18B and the substitution of Mrs. Payne as
administratrix were insufficient to bring the issue of death benefits before
the Commission. Defendants have not,
however, cited any authority to support this contention. Under Rule 28(b)(6) of the Rules of
Appellate Procedure, “[a]ssignments of error . . . in support of which no
reason or argument is stated or authority cited, will be taken as
abandoned.” (Emphasis added.) We are not, therefore, free to revisit the
Commission’s determination that the amended Form 18B allowed the Commission to
address the issue of death benefits.
Defendants
have, however, cited authority for their contention that they “were not
afforded an opportunity to present evidence or investigate the matter in light
of a claim for death benefits.”
Nonetheless, the record reveals that defendants questioned plaintiff’s
expert witness extensively regarding Mr. Payne’s death and that plaintiff filed
her amended Form 18B on or about 6 September 2001, prior to the closing of the
record and more than two months before the deputy commissioner filed her
opinion and award. While on notice that
plaintiff intended to pursue death benefits, defendants did not ask the deputy commissioner
to extend the time for completing the record.
Defendants apparently chose to rely upon their contention that the issue
was not properly before the Commission.
After the
deputy commissioner declined to address the issue of death benefits, plaintiff,
in her Form 44 “Application for Review,” specifically assigned as error the
deputy commissioner’s decision to “sustain[] the Defendant’s objection on the
issue of death benefits being a part of the claim since Plaintiff died
subsequent to the hearing, since the death certificate was admitted into
evidence and since Plaintiff filed an Amended I.C. Form 18B specifically
alleging death benefits on account of his asbestosis.” It is well established that “the full
Commission has the duty and responsibility to decide all matters in controversy
between the parties, and, if necessary, the full Commission must resolve
matters in controversy even if those matters were not addressed by the deputy
commissioner.” Crump v. Independence
Nissan, 112 N.C. App. 587, 589, 436 S.E.2d 589, 592 (1993) (internal
citations omitted). Specifically, a
“plaintiff, having appealed to the full Commission pursuant to G.S. 97-85 and
having filed his Form 44 ‘Application for Review,’ is entitled to have the full
Commission respond to the questions directly raised by his appeal.” Vieregge v. N.C. State Univ., 105 N.C.
App. 633, 639, 414 S.E.2d 771, 774 (1992).
Thus, once
plaintiff included the issue of death benefits in her Form 44, defendants were
on notice that the Full Commission would be required to address that
issue. At that point, defendants had a
strategic choice to make. They could
(1) rest on their contention — accepted by the deputy commissioner — that the
question of death benefits was not properly before the Commission or (2)
request that the Full Commission allow them an opportunity to present evidence
with respect to death benefits. “The
Commission, when reviewing an award by a deputy commissioner, may receive
additional evidence, even if it was not newly discovered evidence.” Cummins v. BCCI Constr. Enters., 149
N.C. App. 180, 183, 560 S.E.2d 369, 371-72, disc. review denied, 356
N.C. 611, 574 S.E.2d 678 (2002). If the
Full Commission chose to address the issue of death benefits on the merits and
determined that the transcript and record were insufficient to resolve that
issue, then the Commission would have been required to “conduct its own hearing
or remand the matter for further hearing.” Crump, 112 N.C. App. at 589, 436 S.E.2d at 592.
Defendants,
however, chose not to ask the Commission for the opportunity to present
additional evidence. The record
contains no request by defendants at any time (1) for an opportunity to
supplement the record with medical evidence or other testimony regarding death
benefits, (2) for a remand to the deputy commissioner for a hearing on that
issue, or (3) for an evidentiary hearing before the Full Commission. In defendants’ brief to the Full Commission,
included in the record on appeal, defendants argue only (1) that the death benefits
issue was not properly before the Commission because Mr. Payne died after the
hearing before the deputy commissioner and (2) that plaintiff’s evidence was
insufficient to support an award of death benefits. Defendants’ brief contains no suggestion that additional evidence
should be taken on the death benefits issue.
The record thus
reflects that defendants had notice that death benefits would be at issue at a
time when they still could have offered evidence. Defendants have not established that they were denied an
opportunity to be heard because they did not ask to present additional
evidence. See Cummins, 149 N.C.
App. at 185, 560 S.E.2d at 373 (defendants were not denied an opportunity to be
heard when they had a doctor’s records for two years and made no motion to
depose that doctor until after the Full Commission entered its opinion and
award). Compare Allen v.
K-Mart, 137 N.C. App. 298, 302, 528 S.E.2d 60, 63-64 (2000) (defendants
were denied an opportunity to be heard when the Full Commission admitted
evidence of two independent medical examinations (“IMEs”) submitted by
plaintiff, but did not rule until after filing its opinion and award on
defendants’ five objections to the allowance of the IMEs, defendants’ request
to depose two physicians, and on defendants’ six requests to have plaintiff
submit to an IME by a physician of defendants’ choosing). We, therefore, hold that defendants have not
demonstrated that they were denied notice and an opportunity to be heard on the
issue of death benefits.
II
Defendants
argue that, even if the issue of death benefits was properly before the
Commission, the claim was barred by N.C. Gen. Stat. §97-61.6. Plaintiff argues in response that the
statute violates the Equal Protection Clause and is, therefore, unconstitutional. The Full Commission awarded death benefits
to plaintiff without specifically addressing the constitutionality of this
statute. The parties agree, however,
that if N.C. Gen. Stat. §97-61.6 controls, then plaintiff is barred from
seeking death benefits.
Paragraph 4 of
N.C. Gen. Stat. §97-61.6 sets out the time frame within which a claim for death
benefits may be brought if the death resulted from asbestosis and silicosis:
[S]hould death
result from asbestosis or silicosis within two years from the date of last
exposure, or should death result from asbestosis or silicosis, or from a
secondary infection or diseases developing from asbestosis or silicosis within
350 weeks from the date of last exposure and while the employee is entitled
to compensation for disablement due to asbestosis or silicosis, either partial
or total, then in either of these events, the employer shall pay, or cause to
be paid compensation in accordance with G.S. 97-38.
(Emphasis
added.) In comparison, for occupational
diseases other than asbestosis or silicosis, N.C. Gen. Stat. §97-38 (2003)
provides for payment of death benefits “[i]f death results proximately from a
compensable injury or occupational disease and within six years thereafter,
or within two years of the final determination of disability, whichever is
later . . . .” (Emphasis added). Thus, for asbestosis and silicosis, the time
limitation runs from the date of last exposure, while for all other
occupational diseases, the focus is on the occurrence of the occupational
disease and the final determination of disability.
Plaintiff
contends that N.C. Gen. Stat. §97-61.6 deprives those with asbestosis and
silicosis of equal protection under the law.
Plaintiff points out: “Victims
of [asbestosis and silicosis], because of paragraph 4 of N.C. Gen. Stat.
§97-61.6, are the only group of individuals suffering from occupational
diseases whose claims must be diagnosed within a certain time period from date
of last exposure; thus to preserve their future death benefits, these
individuals would have to file claims prior to diagnosis or death.” Plaintiff argues that there is no rational
basis for providing a substantially shorter time frame for death benefit claims
based on asbestosis or silicosis than death benefits claims based other latent
occupational diseases.
The principles
governing our decision in this case were set out by this Court — and approved
by the North Carolina Supreme Court — in Walters v. Algernon Blair, 120
N.C. App. 398, 462 S.E.2d 232 (1995), aff’d per curiam, 344 N.C. 628,
476 S.E.2d 105 (1996), cert. denied, 520 U.S. 1196, 137 L. Ed. 2d 700,
117 S. Ct. 1551 (1997). Walters
addressed the question whether N.C. Gen. Stat. §97-63 (1991), “which treats
employees with asbestosis and silicosis differently from employees with other
occupational diseases,” violated the Equal Protection Clause. Id. at 400, 462 S.E.2d at 234.
N.C. Gen. Stat.
§97-63 provided that:
Compensation
shall not be payable for disability or death due to silicosis and/or asbestosis
unless the employee shall have been exposed to the inhalation of dust of silica
or silicates or asbestos dust in employment for a period of not less than two
years in this State, provided no part of such period of two years shall have
been more than 10 years prior to the last exposure.
(Emphasis
added.) The Commission in Walters
had denied the plaintiff’s claim for benefits based on asbestosis because he
had not been exposed to asbestos dust for a period of two years in North
Carolina during the 10 years prior to his last exposure.
In Walters,
the Court first determined that the case implicated the Equal Protection Clause
because “[t]he plaintiff suffers from asbestosis, a specifically enumerated
occupational disease, N.C.G.S. §97-53(24) (1991), and is therefore situated
similarly to all other persons with occupational diseases.” Walters, 120 N.C. App. at 400, 462
S.E.2d at 234. Once the Equal
Protection Clause came into play, the question before the Court became “whether
N.C. Gen. Stat. §97-63, which treats employees with asbestosis and silicosis
differently from other occupational diseases, furthers some legitimate state
interest.” Id.
The defendants
in Walters argued that N.C. Gen. Stat. §97-63 prevented forum shopping
and ensured that North Carolina employers are not burdened with paying workers’
compensation claims for which they are not responsible. The Court, however, noted that “[a]lthough
the prevention of forum shopping and the protection against claims for which
the employer is not responsible are legitimate state interests and are served
by N.C. Gen. Stat. §97-63, the statute is grossly underinclusive in that it
does not include all who are similarly situated.” Walters, 120 N.C. App. at 401, 462 S.E.2d at 234. The Court explained: “There are . . . many other serious
diseases, such as byssinosis, that develop over time and to which N.C. Gen.
Stat. §97-63 does not apply and the defendants have not asserted any
justification for treating asbestosis and silicosis differently from these
other serious diseases.” Id. at
401, 462 S.E.2d at 233 (internal quotation marks omitted). The Court, therefore, concluded that “the
constitutionality of N.C. Gen. Stat. §97-63 cannot be sustained and this case
must be remanded to the Commission.” Id.
Walters establishes
the applicability of the Equal Protection Clause to this case based on its
holding that a plaintiff suffering from asbestosis is “situated similarly to
all other persons with occupational diseases.”
Id. at 400, 462 S.E.2d at 234.
Further, N.C. Gen. Stat. §97-61.6 treats people suffering from
asbestosis and silicosis differently
than people suffering from other latent occupational diseases. See Walters, 120 N.C. App. at 400,
462 S.E.2d at 233-34 (“The principle of equal protection of the law is explicit
in both the Fourteenth Amendment of the United States Constitution and Article
I, Section 19 of the Constitution of North Carolina and requires that all
persons similarly situated be treated alike.”
(internal citations omitted)).
As in Walters, the question before this Court is whether the
distinction between employees suffering asbestosis or silicosis and employees
suffering from other latent occupational diseases “bears a rational
relationship to or furthers some legitimate state interest (minimum scrutiny).” Id., 462 S.E.2d at 234.
In arguing that
N.C. Gen. Stat. §97-61.6 furthers a legitimate state interest, defendants
contend that it is a statute of repose and thus advances the State’s interest
in finality. This contention begs the
real question: what is the State’s
rationale for imposing a harsher statute of repose for claims involving
asbestosis than for other latent occupational diseases, including other
diseases resulting from exposure to asbestos?
See Lamb v. Wedgewood South Corp., 308 N.C. 419, 434-35, 302
S.E.2d 868, 877 (1983) (“The equal protection clauses do not take from the
state the power to classify persons or activities when there is a reasonable
basis for such classification and for the consequent difference in treatment
under the law.” (internal quotation
marks omitted)).
Defendants have
presented no justification for the distinction made here between
asbestosis/silicosis and other latent occupational diseases and we can conceive
of none. As was true in Walters,
the general goals articulated by defendants for the statute are legitimate
state interests, but N.C. Gen. Stat. §97-61.6 — like the statute at issue in Walters
— is “grossly underinclusive in that it does not include all who are similarly
situated.” Walters, 120 N.C.
App. at 401, 462 S.E.2d at 234.
While
defendants point to asbestosis as “unique” because of its incurable and latent
nature, our Supreme Court has already observed:
A disease
presents an intrinsically different kind of claim. Diseases such as asbestosis, silicosis, and chronic obstructive
lung disease normally develop over long periods of time after multiple
exposures to offending substances which are thought to be causative agents. . .
. The first identifiable injury occurs when the disease is diagnosed as
such, and at that time it is no longer latent. . . . Even with diseases which might be caused by a single harmful
exposure such as, for example, hepatitis, it is ordinarily impossible to
determine which of many possible exposures in fact caused the disease. . . .
Both the Court and the legislature have long been cognizant of the difference
between diseases on the one hand and other kinds of injury on the other from
the standpoint of identifying legally relevant time periods.
Wilder v.
Amatex Corp.,
314 N.C. 550, 557-58, 336 S.E.2d 66, 70-71 (1985). Thus, many occupational diseases, because of their latency or
need for repeated exposure to hazardous conditions, give rise to concerns about
“finality.” Indeed, paragraph 4 of N.C.
Gen. Stat. §97-61.6 does not even encompass other asbestos-related deaths, such
as deaths from mesothelioma, a terminal asbestos cancer caused by exposure to
asbestos, but not secondary to asbestosis.
See Robbins v. Wake County Bd. of Educ., 151 N.C. App. 518, 566
S.E.2d 139 (2002) (addressing claim based on mesothelioma arising out of
exposure to asbestos).
As this Court
has since explained, in discussing the application of the Equal Protection
Clause, “[t]he statute at issue in Walters imposed upon claimants
suffering from asbestosis or silicosis an additional burden for recovery not so
imposed on claimants with other occupational diseases. The purposes for which the statute was
enacted were equally applicable to all claimants suffering from occupational
diseases.” Jones v. Weyerhaeuser Co.,
141 N.C. App. 482, 488, 539 S.E.2d 380, 383-84 (2000), appeal dismissed and
disc. review denied, 353 N.C. 525, 549 S.E.2d 858 (2001). This analysis is equally true in this
case. N.C. Gen. Stat. §97-61.6 imposes
an additional burden for recovery — a shorter time frame for death benefits
claims — for asbestosis or silicosis when no rational basis exists for treating
such occupational diseases differently from other latent occupational diseases.
Because
defendant has failed to suggest a justification for treating asbestosis
differently than other latent occupational diseases, such as byssinosis, we
hold that the time limitation in the fourth paragraph of N.C. Gen. Stat.
§97-61.6 violates the Equal Protection Clause under the rational basis test. Since the parties agree that plaintiff’s
claim was within the time limitation applicable to other occupational diseases,
N.C. Gen. Stat. §97-38, we uphold the Commission’s determination that
plaintiff’s claim for death benefits was timely filed.
III
Defendants
R&W and Travelers next contend that the Commission’s determination that Mr.
Payne’s asbestosis caused or significantly contributed to his disability and
death is not supported by the evidence.
In reviewing decisions by the Commission, “we are limited to the
consideration of two questions: (1) whether the Full Commission’s findings of
fact are supported by competent evidence; and (2) whether its conclusions of
law are supported by those findings.” Calloway
v. Mem’l Mission Hosp., 137 N.C. App. 480, 484, 528 S.E.2d 397, 400
(2000). If the findings are supported
by any competent evidence, they are conclusive on appeal, even if other
evidence would support contrary findings.
Id. Additionally, “[t]he
evidence tending to support plaintiff’s claim is to be viewed in the light most
favorable to plaintiff, and plaintiff is entitled to the benefit of every
reasonable inference to be drawn from the evidence.” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998).
On this issue,
defendants first contend that the evidence does not support a finding that Mr.
Payne suffered asbestosis as defined by N.C. Gen. Stat. §97-62 (2003) (defining
“asbestosis” as “a characteristic fibrotic condition of the lungs caused by the
inhalation of asbestos dust”). In support
of this argument, defendants quote at length from Commissioner Sellers’ dissent
below, which purports to set out the definition of asbestosis developed by the
American Thoracic Society and then applies that test to the evidence presented
in this case. Significantly, defendants
did not present expert witness testimony regarding the American Thoracic
Society standard or the application of that standard to Mr. Payne.[Note 2] Unquestionably, the standard by which
asbestosis should be diagnosed and application of that standard in a specific
case are questions requiring expert testimony.
Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265
S.E.2d 389, 391 (1980) (requiring expert testimony “where the exact nature and
probable genesis of a particular type of injury involves complicated medical
questions far removed from the ordinary experience and knowledge of
laymen”). The argument of defendants
that Mr. Payne’s condition does not meet the American Thoracic Society standard
— as adopted by the dissenting Commissioner below — is unsupported by any
evidence in the record. As the Supreme
Court recently reiterated by adopting Judge Steelman’s dissenting opinion, “It
is not the role of the Commission to render expert opinions.” Edmonds v. Fresenius Med. Care, 165
N.C. App. 811, 819, 600 S.E.2d 501, 506 (2004) (Steelman, J., dissenting), rev’d
per curiam, 359 N.C. 313, 608 S.E.2d 755 (2005).
This Court has
previously rejected bare reliance “on a statement from the American Thoracic
Society and other medical literature” as support for overturning the
Commission’s determination that a plaintiff had asbestosis as defined in N.C.
Gen. Stat. §97-62. Austin v. Cont’l
Gen. Tire, 141 N.C. App. 397, 402, 540 S.E.2d 824, 828 (2000), rev’d on
other grounds, 354 N.C. 344, 553 S.E.2d 680 (2001). Instead, after observing that the Commission
made extensive findings regarding the medical evidence and expert testimony,
this Court concluded that “[a] review of the deposition transcripts and medical
evidence presented to the Commission shows plenary evidence to support the
Commission’s findings of fact.
Accordingly, those findings are conclusive on appeal.” Id. at 403, 540 S.E.2d at 828.
Likewise, in
this case, the Commission extensively reviewed the medical evidence, including
the diagnosis of Dr. Proctor that Mr. Payne suffered from emphysema and
“asbestosis and pleural plaques related to asbestos exposure”; the opinion of
Dr. Fred Dula, a NIOSH certified B-reader, that Mr. Payne’s chest films were
“entirely consistent with asbestosis”; and the opinion of Dr. Richard
Bernstein, a NIOSH certified B-reader, that Mr. Payne’s x-rays showed
“[p]leural disease consistent with long standing asbestos exposure.” While the Commission noted the testimony of
Dr. Michael Alexander, also a certified B-reader, that any pulmonary impairment
was caused by emphysema, the Commission concluded: “Given that Dr. Alexander is not a pulmonologist, did not examine
plaintiff personally and is not a diagnosing physician, the Full Commission
gives greater weight to the diagnostic conclusions of Dr. Proctor and the x-ray
and CT interpretations of Drs. Dula and Bernstein.”
While
defendants argue with Dr. Proctor’s diagnosis, they present questions of
credibility and weight that the Commission was entitled to resolve in favor of
plaintiff. An appellate court reviewing
a workers’ compensation claim “‘does not have the right to weigh the evidence
and decide the issue on the basis of its weight.’“ Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Anderson
v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274
(1965)). Rather, the Court’s duty goes
no further than to determine “‘whether the record contains any evidence tending
to support the finding.’“ Id.
(quoting Anderson, 265 N.C. at 434, 144 S.E.2d at 274). Because the Commission’s finding that Mr.
Payne suffered from asbestosis is supported by competent evidence, it is
binding on appeal.
Defendants next
challenge the Commission’s finding that Mr. Payne’s asbestosis either caused or
significantly contributed to his disability and his subsequent death. Defendants argue that there is no competent
evidence that asbestosis caused plaintiff’s death, and any findings made by the
Commission were based upon pure speculation.
To the contrary, Dr. Proctor, a specialist in pulmonary medicine,
testified in his deposition to a reasonable degree of medical certainty that
Mr. Payne’s asbestosis significantly contributed to his death. Further, Dr. Proctor testified that Mr.
Payne’s asbestosis also severely impaired his ability to conduct daily
activities and that he would have been unable, because of the asbestosis, to
maintain employment, “[p]articularly if there were any — if there was any
activity involved, he would not be able to do that.” While defendants point to the fact that Mr. Payne had originally
stopped working because of his back injury, both Mr. Payne and his wife
testified that he subsequently ceased being disabled as a result of his back
problem. It was for the Full Commission
to decide whether that testimony was credible.
Because there is evidence in the record that supports the Commission’s
finding that Mr. Payne’s asbestosis caused his
disability and significantly contributed to his death, these assignments
of error are overruled.
IV
Finally,
defendants R&W and Travelers assign error to the Full Commission’s finding
that “[d]ecedent’s last injurious exposure to asbestos occurred during his
employment with defendant-employer Ross & Witmer.” According to N.C. Gen. Stat. §97-57 (2003),
“the employer in whose employment the employee was last injuriously exposed to
the hazards of such disease” shall be liable.
Under the statute, with respect to asbestosis or silicosis, the worker
must have been exposed for 30 working days within seven consecutive months in
order for the exposure to be deemed injurious.
Id. Our review is limited
to determining “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)
Defendants
argue first that plaintiff “provided no scientific evidence tending to show the
presence of asbestosis [sic] in any environment in which he worked at Ross
& Witmer or, for that fact, any other employer.” This Court has squarely held that “there is no need for such
expert testimony.” Vaughn v.
Insulating Servs., 165 N.C. App. 469, 473, 598 S.E.2d 629, 631, disc.
review denied, 359 N.C. 75, 605 S.E.2d 150 (2004). See also Abernathy v. Sandoz
Chems./Clariant Corp., 151 N.C. App. 252, 259, 565 S.E.2d 218, 223, cert.
denied, 356 N.C. 432, 572 S.E.2d 421 (2002) (holding that scientific
evidence was not required regarding the extent of exposure to asbestos when
deciding where the plaintiff was last injuriously exposed under N.C. Gen. Stat.
§97-57).
In Abernathy,
this Court held that “competent evidence” existed to support a finding of
liability under N.C. Gen. Stat. §97-57 when (1) the plaintiff testified “that
he worked around asbestos in one way or another up until the day he retired”
and that he worked directly with asbestos approximately four days a week from
1991 to 1993, (2) another employee testified that the plaintiff would take down
pipe containing asbestos two or three times a week, and (3) the yard where the
plaintiff worked “was very dusty with levels of asbestos present.” Abernathy, 151 N.C. App. at 259, 565
S.E.2d at 223. Plaintiff offered
comparable evidence in this case.
Mr. Payne
testified that as part of R&W’s apartment complex project, he worked
directly with and supervised people cutting and installing asbestos wallboard
and asbestos cloth. Mr. Payne was
either cutting or standing close to people cutting asbestos boards and cloth
“roughly twice a week.” Don Sloop, Mr.
Payne’s supervisor at the Barcelona Apartments Construction Project, testified
that Mr. Payne would have been exposed to asbestos material any time he was on
the job site. Mr. Payne specifically
testified that any cutting of the asbestos board would cause asbestos dust to
cover his clothes, face, and hair and he would breathe it in. Under Abernathy, this evidence is
sufficient to support the Commission’s finding that Mr. Payne’s last injurious
exposure to asbestos occurred during his employment with R&W.
For this reason
and the reasons above, we affirm the Commission’s opinion and award directing
defendants R&W and Travelers to pay total disability and death benefits to
plaintiff.
Affirmed.
Judges
TIMMONS-GOODSON and MCCULLOUGH concur.
1. That amended Form 18B stated: “Plaintiff’s asbestosis has either caused or
significantly contributed to Decedent’s death from emphysema and pulmonary
fibrosis. Decedent died on October 16,
2000 as testified to by Dr. Stephen D. Proctor.”
2. Defendants’ sole expert witness was Dr.
Michael Alexander, a radiologist, who acknowledged that he was not a diagnosing
physician for asbestosis and could not refute the diagnosis of a pulmonologist
such as plaintiff’s expert, Dr. Stephen Proctor.