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authoritative.
NO. COA06-1390
NORTH CAROLINA COURT OF APPEALS
Filed: 21 August 2007
WAYNE AUSTIN,
Employee,
Plaintiff-Appellee,
v. North Carolina Industrial Commission
I.C.
File No. 916849
CONTINENTAL
GENERAL TIRE,
EMPLOYER, Self-Insured,
(Gallagher Bassett, Servicing
Agent),
Defendant-Appellant.
Appeal by defendant from Opinion and Award entered 30 May
2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 May 2007.
Wallace
& Graham, PA, by Mona L. Wallace, Cathy Williams, and Edward Pauley, for
Plaintiff-appellee.
Hedrick
Eatman Gardner & Kincheloe, L.L.P., by J. A. Gardner, for
defendant-appellant.
ELMORE, Judge.
Continental General Tire (defendant) appeals a 30 May 2006
Opinion and Award by the Full Commission of the North Carolina Industrial
Commission (Full Commission), which awarded workers’ compensation benefits to
Wayne Austin (plaintiff). We affirm.
Plaintiff “was employed by defendant for over twenty years,
during which time the record shows he was repeatedly exposed to asbestos dust
and fibers. . . . Plaintiff retired on
1 June 1987 for reasons unrelated to asbestos exposure.” Austin v. Continental Gen. Tire, 141
N.C. App. 397, 399-00, 540 S.E.2d 824, 826 (2000), rev’d on other grounds,
354 N.C. 344, 553 S.E.2d 680 (2001) (Austin I).
In 1989, plaintiff filed a Form 18 notice of accident,
seeking workers’ compensation benefits for asbestosis; in 1995 he filed a Form
33 request for hearing. Defendant
denied liability, and a hearing was conducted before a Deputy Commissioner in
May, 1996. In July, 1998 the Deputy
Commissioner entered an Opinion and Award
making thorough
and extensive findings of fact and concluding that plaintiff had contracted
asbestosis, entitling him to 104 weeks of compensation pursuant to N.C. Gen.
Stat. §97-61.5(b) (1991) at the rate of $30.00 per week. Plaintiff appealed to the Commission, which
. . . determined that plaintiff suffered from asbestosis and was entitled to
104 weeks of compensation pursuant to N.C.G.S. §97-61.5(b), but at the rate of
$308.00 per week . . . .
Austin
I
at 402, 540 S.E.2d at 828.
Defendant appealed, and in Austin I this Court
affirmed the Full Commission. Austin
I at 414, 540 S.E.2d at 834. Judge
Greene dissented on the basis that “because plaintiff was not employed by
defendant at the time of his diagnosis and, therefore, was not ‘removed’ from
his employment pursuant to section 97-61.5(b), section 97-64 provides
plaintiff’s sole remedy for his alleged asbestos-related disorder.” Id. at 416, 540 S.E.2d at 836
(Greene, J., dissenting). The North
Carolina Supreme Court reversed in a per curiam opinion stating that:
For the reasons
stated in the dissenting opinion by Judge Greene, we reverse the decision of
the Court of Appeals and remand this case to that court for further remand to
the North Carolina Industrial Commission for proceedings not inconsistent with
this opinion and Judge Greene’s dissent below.
Austin
v. Continental Gen. Tire, 354 N.C. 344, 553 S.E.2d 680 (2001) (Austin
II).
On remand, the Full Commission remanded to the Deputy Commissioner for an evidentiary hearing to determine plaintiff’s eligibility for workers’ compensation benefits under N.C. Gen. Stat. §97-64. Defendants objected, arguing that it would be more appropriate to convene a panel of the Full Commission to determine plaintiff’s disability based on only the existing record. Following a hearing in June, 2004, the Deputy Commissioner issued an Opinion and Award on 16 December 2004, from which defendant appealed. The Full Commission vacated the Opinion and Award of the Deputy Commissioner and issued its own Opinion and Award on 30 May 2006. The Full Commission found that plaintiff was diagnosed with asbestosis in 1994, and had been totally disabled by February 1998. The Full Commission awarded “permanent total disability benefits to plaintiff at the rate of $308.00 per week beginning February 2, 1998 and continuing throughout plaintiff’s lifetime.” The Full Commission also ordered defendant to pay for all medical expenses arising from plaintiff’s asbestosis. From this Opinion and Award, defendant appeals.
The Commission
has exclusive original jurisdiction over workers’ compensation cases and has
the duty to hear evidence and file its award, together with a statement of the
findings of fact, rulings of law, and other matters pertinent to the questions
at issue. Appellate review of an award
from the Industrial Commission is generally limited to two issues: (i) whether
the findings of fact are supported by competent evidence, and (ii) whether the
conclusions of law are justified by the findings of fact.
Chambers
v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citations
and quotations omitted). “The
Commission’s findings of fact are conclusive on appeal if supported by
competent evidence, notwithstanding evidence that might support a contrary
finding. Further, the Commission is the
sole judge regarding the credibility of witnesses and the strength of
evidence.” Hobbs v. Clean Control
Corp., 154 N.C. App. 433, 435, 571 S.E.2d 860, 862 (2002) (citations
omitted). “The Commission’s findings of
fact may only be set aside when ‘there is a complete lack of competent evidence
to support them.’” Evans v. Wilora
Lake Healthcare, __ N.C. App. __, __, 637 S.E.2d 194, 195 (2006) (quoting Click
v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980)). “However, the Commission’s conclusions of
law are reviewable de novo by this Court.” Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 427, 552
S.E.2d 269, 272 (2001) (citations omitted).
Defendant argues first that the Full Commission’s Opinion
and Award must be reversed because the Industrial Commission failed to comply
with the order of remand from the North Carolina Supreme Court. Defendant asserts that the Full Commission’s
remand to a Deputy Commissioner for a hearing on the issue of plaintiff’s
disability violated the remand order from the North Carolina Supreme
Court. We disagree.
Defendant’s assertion, that the mandate of the North
Carolina Supreme Court prohibited the Full Commission from conducting an
evidentiary hearing on remand, is based on the following language from Crump
v. Independence Nissan:
Following an
appeal to this Court if the case is remanded to the Commission, the full
Commission must strictly follow this Court’s mandate without variation or
departure. Ordinarily upon remand the
full Commission can comply with this Court’s mandate without the need of an
additional hearing, but upon the rare occasion that this Court requires an
additional hearing upon remand the full Commission must conduct the hearing
without further remand to a deputy commissioner.
112
N.C. App. 587, 590, 436 S.E.2d 589, 592 (1993). We conclude that Crump is not, as asserted by defendant,
“a mandatory directive that no further evidence or hearing is to be conducted
unless the appellate court reviewing the matter on rare occasion orders the
same.” The above quoted language does
not address the authority of the Full Commission to conduct an evidentiary
hearing upon remand. Rather, it
specifies that when this Court orders a hearing, such hearing shall be
conducted by the Full Commission rather than being remanded to a Deputy
Commissioner. Further, this language is
dicta; the issue raised by the appellant in Crump was whether the
Full Commission erred by adopting the Deputy Commissioner’s Opinion and Award
as its own. Id. at 588-89, 436
S.E.2d at 592-93. The appeal in Crump
did not present any issue of the proper procedure to be followed by the
Industrial Commission upon remand from an appellate court.
In the instant case, the North Carolina Supreme Court simply
ordered the Commission to conduct “proceedings not inconsistent with this
opinion and Judge Greene’s dissent below.”
Austin II at 345, 553 S.E.2d at 680. As the sole basis for the dissent was that plaintiff was required
to seek workers’ compensation benefits under N.C. Gen. Stat. §97-64 rather than
N.C. Gen. Stat. §97-61.5, the Commission’s remand for determination of
plaintiff’s entitlement to benefits under §97-64 was consistent with the
Court’s opinion and the dissent. This assignment
of error is overruled.
Defendant also argues that as a matter of law the Full
Commission was barred from taking new evidence, on the grounds that the issue
of plaintiff’s disability was an issue in the first hearing. The issue at the first hearing was
plaintiff’s entitlement to benefits under N.C. Gen. Stat. §97-61.1 through
61.7. Under these statutes, “a
diagnosis of asbestosis, for purposes of determining eligibility to receive
benefits, is the equivalent of a finding of actual disability.” Roberts v. Southeastern Magnesia and
Asbestos Co., 61 N.C. App. 706, 710, 301 S.E.2d 742, 744 (1983). Accordingly, the issue of plaintiff’s
disability was not a contested issue at the first hearing, and no evidence was
presented on the subject. However, on
remand the Commission was directed to determine whether plaintiff was entitled
to benefits under N.C. Gen. Stat. §97-64, which provides that “in case of
disablement or death from silicosis and/or asbestosis, compensation shall be
payable in accordance with the provisions of the North Carolina Workers’
Compensation Act.” N.C. Gen. Stat.
§97-64 (2005). Thus, plaintiff’s
disability was clearly at issue on remand.
Moreover, recent opinions of this Court addressing this situation
clearly contemplate an evidentiary hearing on remand. See, e.g., Abernathy v. Sandoz Chems./Clariant Corp.,
151 N.C. App. 252, 257, 565 S.E.2d 218, 221 (2002) (“[T]hough plaintiff does
not qualify for compensation pursuant to G.S. §97-61.5, he is nevertheless
entitled to pursue a claim for compensation pursuant to G.S. §97-64. That statute provides . . . ‘in case of
disablement . . . from . . . asbestosis, compensation shall be payable in
accordance with the provisions of the North Carolina Workers’ Compensation
Act.’ . . . If, on remand, plaintiff
establishes his disablement from asbestosis, and his entitlement to
compensation pursuant to G.S. §97-64, the Commission must determine his average
weekly wage.”) (Emphasis added).
Moreover, even if the Commission had addressed plaintiff’s
disability at the first hearing, defendant cites no authority for the
proposition that the Full Commission would have been barred from
reconsideration of the issue. This
assignment of error is overruled.
Defendant argues next that the Commission erred by taking
new evidence following remand because the evidence regarding plaintiff’s
disability “was available at the time of the first hearing . . . .” Defendant contends that new evidence “would
have to constitute newly discovered evidence under [N.C. Gen. Stat. §1A-1,]
Rule 60(b)(2).” We disagree.
First, defendant cites no pertinent authority for the
propetition that the Commission’s authority to take additional evidence
regarding the issue of plaintiff’s disability is limited by the strictures of
Rule 60. Defendant also contends that
plaintiff’s disability was “at issue” in the first hearing, requiring plaintiff
to present his evidence of disability at that time. In fact, the issue of disability was not litigated at the first
hearing because disability evidence is not required under N.C. Gen. Stat.
§97-61.5. N.C. Gen. Stat. §97-61.5
(2005). Moreover, in Austin II,
the North Carolina Supreme Court held for the first time that this statute was
not available to claimants who were retired at the time the claim was filed,
and that plaintiff would have to file for benefits under a different statute,
N.C. Gen. Stat. §97-64. Austin II
at 345, 553 S.E.2d 680 (adopting the reasoning stated in Austin I at
416, 553 S.E.2d at 836 (Greene, J., dissenting)).
Defendant cites no authority supporting its position that
plaintiff’s failure to present disability evidence at the first hearing bars
him from doing so now. Indeed, Hall
v. Chevrolet Co. cited by defendant, holds to the contrary:
We find convincing the following reasoning of the Connecticut court: ‘. . . A party to a [workers’] compensation case is not entitled to try his case piecemeal. . . . On the other hand, mere inadvertence on his part, mere negligence, without intentional withholding of evidence, particularly where there is no more than technical prejudice to the adverse party, should not necessarily debar him of his rights, and despite these circumstances a commissioner in the exercise of his discretion might be justified in opening an award.
Hall
v. Chevrolet Co., 263 N.C. at 576-77, 139 S.E.2d at 862-63 (1965) (quoting Kearns
v. City of Torrington, 119 Conn. 522, 529-30, 177 Atl. 725, 728 (1935)).
Nor does defendant cite any pertinent authority holding that
the Commission’s authority to take new evidence is limited to those issues on
which plaintiff presented evidence. In Trivette
v. Mid-South Mgmt., Inc., 141 N.C. App. 151, 541 S.E.2d 523 (2000),
the plaintiff appealed from an Opinion and Award, and this Court remanded to
the Commission for findings on permanent partial impairment. Trivette v. Mid-South Mgmt., Inc.,
154 N.C. App. 140, 141-42, 571 S.E.2d 692, 694 (2002) (citing 141 N.C. App.
151, 541 S.E.2d 523). On remand, the
Commission addressed this issue, and also awarded compensation for temporary
total disability. Id. at 142,
571 S.E.2d at 694. This Court held that
in so doing the Commission did not exceed its authority. Id. at 143, 571 S.E.2d at 695. In Joyner v. Rocky Mount Mills, the
Commission dismissed a plaintiff’s claim for future medical expenses because it
determined that the claim “had not been preserved according to the Commission’s
rules.” 92 N.C. App. 478, 481, 374
S.E.2d 610, 612 (1988). The sole
question before this Court was whether the Commission had erred by dismissing
that claim. Id. at 480, 374
S.E.2d at 612. We reversed because
Plaintiff’s
claim . . . embodied a claim for future medical expenses. When the matter was ‘appealed’ to the full
Commission by defendants it was the duty and responsibility of the full
Commission to decide all of the matters in controversy between the parties. . .
. The Commission may not use its own
rules to deprive a plaintiff of the right to have his case fully
determined. Thus, the Commission’s statement
. . . that ‘the issue of payment of future medical expenses is not properly
preserved’ will not support the order [dismissing plaintiff’s motion].
Id.
at
482, 571 S.E.2d at 613. Thus, even
assuming, arguendo, that disability was raised by plaintiff’s initial
claim, the fact that it wasn’t litigated at the first hearing did not preclude
plaintiff’s presenting evidence on the issue on remand. This assignment of error is overruled.
Defendant argues next that the Full Commission erred by
finding that the findings of fact from the first hearing were res judicata
in the second one. Assuming, arguendo,
that the Full Commission erred in this regard, we conclude that defendant has
failed to show prejudice.
In its Opinion and Award the Full Commission stated that:
The Findings of
Fact of the Full Commission Opinion and Award filed December 18, 1998, as
approved by the North Carolina Court of Appeals and Supreme Court, are res
judicata and if not specifically addressed herein, are incorporated by
reference.
Defendant
has failed to identify any specific findings from the first hearing that it
contends: (1) were unsupported by the evidence; or (2) were contradicted by
evidence taken at the second hearing.
Nor has defendant asserted any way in which the Full Commission’s
incorporation of its findings from the first hearing hindered defendant’s
ability to defend this action. This
assignment of error is overruled.
Defendant argues next that the Full Commission erred by
awarding plaintiff benefits, on the grounds that plaintiff “retired
voluntarily” and not due to pulmonary problems. We disagree.
Defendant cites no authority for the proposition that a
claimant cannot recover for an occupational disease if he has voluntarily
retired prior to filing a claim, and long-established precedent to the contrary
clearly establishes that a claimant is not barred from receiving workers’
compensation benefits for an occupational disease solely because he or she was
retired. See, e.g., Heffner
v. Cone Mills Corp., 83 N.C. App. 84, 88, 349 S.E.2d 70, 74 (1986) (“[T]he
Commission may not deny disability benefits because the claimant retired where
there is evidence of diminished earning capacity caused by an occupational
disease.”). In Heffner, the
Commission denied the plaintiff’s claim for disability compensation, and in
doing so “apparently placed great reliance on its conclusion . . . that the
plaintiff’s lack of earnings was due to his desire to retire and the closing of
the plant where he was working. In
doing so, we believe the Commission acted under a misapprehension of the law.”
Id.
The Heffner rule
is consistent with G.S. §97-29, the statute through which claimants are awarded
benefits for total disability, in that the section provides that compensation
is to be paid ‘during the lifetime of the injured employee,’ and payments are
not terminated when a claimant reaches an age at which he or she would have
retired if able to work.
Stroud
v. Caswell Center, 124 N.C. App. 653, 656, 478 S.E.2d 234, 236 (1996). This assignment of error is overruled.
We have considered defendant’s remaining arguments, and conclude
that they are without merit.
For the reasons discussed above, we conclude that the
Commission did not err and that its Opinion and Award should be
Affirmed.
Judges McGEE and JACKSON concur.