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NO. COA03-107
NORTH CAROLINA COURT OF APPEALS
Filed: 03 February 2004
JESSIE BILL CHILDRESS,
Employee,
Plaintiff
v. North Carolina Industrial Commission
I.C. File No. 710350
FLUOR DANIEL, INC.,
Employer,
and
KEMPER INSURANCE COMPANY,
Carrier,
Defendants
Appeal by defendants from Opinion and Award entered 16 April 2002 by the North Carolina Industrial Commission. Heard in the Court of Appeals 29 October 2003.
Edward L. Pauley, Mona Lisa
Wallace, and M. Reid Acree, Jr., for plaintiff-appellee.
Hedrick, Eatman, Gardner &
Kincheloe, L.L.P., by Hatcher Kincheloe and Jason Cline McConnell, for
defendant-appellant.
STEELMAN, Judge.
Defendants (Fluor Daniel, Inc., and
Kemper Insurance Company) appeal an Opinion and Award of the North Carolina
Industrial Commission awarding plaintiff (Jessie Bill Childress) forty thousand
dollars ($40,000) for permanent injury to his lungs and an additional twenty
thousand dollars ($20,000) for permanent injury to his colon. For the reasons
discussed herein, we affirm.
The relevant facts as found by the
Full Commission are as follows. Plaintiff was employed by Daniel International
Corporation (Fluor Daniel’s predecessor in interest) at the DuPont Facility in
Brevard, North Carolina during 1975_78. During that time, Daniel
International’s workers’ compensation carrier for the DuPont facility was
American Motorists Insurance Company (now Kemper Insurance).
Plaintiff was exposed to asbestos
while working at the Dupont facility, and he did not suffer subsequent
exposure. Plaintiff presented expert medical testimony that he had colon cancer
and asbestosis in both lungs. This testimony causally linked each of these
conditions to plaintiff’s exposure to asbestos.
On 8 May 1997, plaintiff filed a
Form 18B alleging asbestosis, an occupational disease, and seeking workers’
compensation benefits from defendants. Plaintiff later amended his Form 18B to
include a claim for colon cancer. Defendants denied liability.
At hearings before two deputy
commissioners, defendants moved for an order to compel plaintiff to disclose
amounts of any third-party settlements received by plaintiff. These motions
were denied.
On 16 April 2002, the Full
Commission entered its Opinion and Award in this matter. The Commission awarded
plaintiff the sum of twenty thousand dollars ($20,000) for permanent injury to
his colon, twenty thousand dollars ($20,000) for permanent injury to his left
lung, and twenty thousand dollars ($20,000) for permanent injury to his right
lung. Each of these awards was made pursuant to N.C. Gen. Stat. §97-31(24)
(2001). The Commission further directed that defendants pay all medical
expenses incurred or to be incurred by plaintiff as a result of his asbestosis
and colon cancer.
On 6 May 2002, defendants moved that
the Commission withdraw its Opinion and Award. The basis of this motion by
defendants was “to protect [defendants’] rights against payment for which a
credit is due pursuant to consummated third-party settlements.” By order filed
20 August 2002, the Full Commission denied defendants’ motion. Defendants gave
notice of appeal to this Court on 25 September 2002.
On appeal of an Opinion and Award by
the Industrial Commission, this Court 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).
Evidence tending to support the plaintiff’s claim is to be viewed in the light
most favorable to the plaintiff, and the 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), reh’g denied,
350 N.C. 108, 532 S.E.2d 522 (1999). If there is any evidence in the record to
support a finding of fact, it is conclusive on appeal, even if there is
substantial evidence to the contrary. Id.
In their first assignment of error,
defendants argue the Commission erred in denying defendants’ motion to withdraw
or to stay the effect of the Opinion and Award of the Full Commission. We
disagree.
“The purpose of the North Carolina
Workers’ Compensation Act is not only to provide a swift and certain remedy to
an injured worker, but also to ensure a limited and determinate liability for
employers.” Radzisz v. Harley Davidson of Metrolina, 346 N.C. 84, 89,
484 S.E.2d 566, 569 (1997). The Act was not intended to provide the employee
with a windfall by recovering from both his employer and a third-party
tortfeasor. Id. For this reason, the Act provides for subrogation by
employers of recovery from third parties. N.C. Gen. Stat. §97-10.2 (2001).
However, the Industrial Commission only acquires jurisdiction over subrogation
issues after a workers’ compensation claim is settled or a final award has been
entered. N.C. Gen. Stat. §97-10.2(f)(1).
An employer’s right to a subrogation
lien exists at the outset of a workers’ compensation case. See Radzisz,
346 N.C. at 89, 484 S.E.2d at 569. Moreover, an employer’s subrogation lien is
not waived by failure to settle or obtain a final award prior to payment of
third-party settlement proceeds. Id. However, the employer’s right to
subrogation does not vest until the workers’ compensation case is settled or an
award becomes final. See Davis v. Weyerhaeuser Co., 96 N.C. App. 584,
588, 386 S.E.2d 740, 742 (1989) (stating that since defendant-employer had not
made any payments to plaintiff, defendant-employer was not yet entitled to a
credit based on the third-party settlement). The Industrial Commission does not
have jurisdiction over the employer’s subrogation claim until an award “final
in nature” is entered. N.C. Gen. Stat. §97-10.2(f)(1).
Rather, section 97-10.2(j) governs
subrogation prior to entry of a final award:
[I]n the event that a settlement has
been agreed upon by the employee and the third party, either party may apply to
the resident superior court judge . . . to determine the subrogation amount. .
. . [T]he judge shall determine, in his discretion, the amount, if any, of the
employer’s lien, whether based on accrued or prospective workers’ compensation
benefits, and the amount of cost of the third-party litigation to be shared
between the employee and employer.
N.C.
Gen. Stat. §97-10.2(j). However, after “an award final in nature in favor of
the employee has been entered by the Industrial Commission, then any amount
obtained by any person by settlement with, judgment against, or otherwise from
the third party . . . shall be disbursed by order of the Industrial Commission
. . . .” N.C. Gen. Stat. §97-10.2(f)(1).
A final award has not yet been
entered in this matter. Although the Full Commission entered an Opinion and
Award on 16 April 2002, that award was appealed by the defendants to this
Court. Thus, the award is not final in nature, and the Industrial Commission
does not have jurisdiction over defendants’ subrogation claim. See id.
Until the award becomes final, jurisdiction over defendants’ subrogation claim
lies with the superior court. N.C. Gen. Stat. §97-10.2(j). Therefore, the
Industrial Commission correctly refused to stay the effect of its Opinion and
Award on the basis of defendants’ subrogation claims. This assignment of error
is without merit.
In their second assignment of error,
defendants argue the Industrial Commission erred in awarding plaintiff forty
thousand dollars ($40,000) for his lung damage. We disagree.
The Workers’ Compensation Act
“schedule of injuries” provides:
In case of the loss of or permanent
injury to any important external or internal organ or part of the body for
which no compensation is payable under any other subdivision of this section,
the Industrial Commission may award proper and equitable compensation not to
exceed twenty thousand dollars ($20,000).
N.C.
Gen. Stat. §97-31(24). Defendants argue that plaintiff’s lungs are but a single
organ and that plaintiff is entitled to a maximum award of $20,000 for
permanent injury to his lungs. In Aderholt v. A.M. Castle Co., 137 N.C.
App. 718, 724, 529 S.E.2d 474, 478, cert. denied, 352 N.C. 356, 544
S.E.2d 546 (2000), the plaintiff was awarded forty thousand dollars ($40,000)
for permanent damage to his lungs, twenty thousand dollars ($20,000) per lung.
This Court upheld the award, stating that the record revealed “competent
medical evidence to support the Commission’s findings regarding the
significance of each organ to the body’s general health and well-being.” Id.
at 724, 529 S.E.2d at 479. Moreover, the Court held that “the organs
were important within the meaning of section 97-31(24) and that the amounts
awarded for each were proper and equitable.” Id.
In this case, the Full Commission
found that plaintiff suffered permanent injury to “three important internal
organs; to wit: his lungs, in the form of permanent and irreversible loss of
lung function, and his colon, in the form of permanent and irreversible loss of
colon function.” An award under section 97-31(24) “will not be overturned on
appeal absent an abuse of discretion” by the Full Commission. Little v. Penn
Ventilator Co., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986). Finding no
abuse of discretion, we conclude that an award of forty thousand dollars for
permanent damage to both of plaintiff’s lungs was appropriate under section
97-31(24). This assignment of error is without merit.
In defendants’ third assignment of
error, they assert the Industrial Commission erred in holding that a disability
need not be proven in order for section 97-31(24) to apply. We disagree.
Section 97-31 is a schedule of
injuries that allows for compensation even if a claimant does not demonstrate
loss of wage-earning capacity. Harrell v. Harriet & Henderson Yarns,
314 N.C. 566, 575, 336 S.E.2d 47, 52 (1985). “Losses included in the schedule
are conclusively presumed to diminish wage-earning ability.” Id. at 575,
336 S.E.2d at 52-53. Thus, the Industrial Commission may enter an award
pursuant to section 97-31 without finding that the employee is disabled. Id.
at 576, 336 S.E.2d at 53; Davis v. Weyerhaeuser Co., 132 N.C. App. 771,
776, 514 S.E.2d 91, 94 (1999).
Defendants incorrectly argue that
this principle was overruled by Wilkins v. J.P. Stevens & Co., 333
N.C. 449, 426 S.E.2d 675 (1993). In dicta, the Wilkins Court wrote that
“[f]or any physical impairment, including that caused by an occupational
disease, to be compensable under the Act, it must be shown that the impairment
has caused the claimant to have an incapacity for work.” Id. at 453,426
S.E.2d at 678. However, the plaintiff in that case was actually denied benefits
not because he failed to prove a disability, but because his disability
resulted from non-occupational causes. Id. at 454-55, 426 S.E.2d at
678-79. Thus, Harrell was not overruled by Wilkins and plaintiff
need not show he was disabled in order to receive compensation under section
97-31(24). This assignment of error is without merit.
AFFIRMED.
Judges MARTIN and HUDSON concur.