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authoritative.
NO. COA06-785
NORTH CAROLINA COURT OF APPEALS
Filed:
3 July 2007
THE ESTATE OF
LEWARD BENMACK GAINEY, deceased,
Employee,
Plaintiff,
v. North
Carolina Industrial Commission
I.C.
File No. 922822
SOUTHERN FLOORING AND
ACOUSTICAL CO., INC.,
Employer,
USF&G and KEMPER INSURANCE
COMPANY,
Carrier,
Defendants.
Appeal
by defendants from Opinion and Award entered 2 March 2006 by the Industrial
Commission of North Carolina. Heard in
the Court of Appeals 5 February 2007.
Wallace
and Graham, P.A., by Edward L. Pauley, for plaintiff-appellee.
Teague,
Campbell, Dennis & Gorman, L.L.P., by Thomas M. Clare and Courtney C. Britt,
for defendant-appellants.
STROUD,
Judge.
Defendants appeal from the Opinion and Award of the Industrial Commission filed on 2 March 2006, which granted workers’ compensation benefits and attorney’s fees to plaintiff’s estate for permanent and total disability due to asbestosis. We affirm.
I.
Factual Background
Plaintiff
testified under oath as follows: He
began work for defendant-employer in 1969 as a field installer, which primarily
involved the installation of asbestos tiles in ceilings. He later became a superintendent for
approximately three to four years, worked as a salesman, and was a part owner
for the last four or five years of his employment with Southern Flooring and
Acoustical Co., Inc. (“Southern Flooring”).
Plaintiff retired from his position with defendant-employer in 1983 and
started his own company, Gainey Acoustical.
As owner of Gainey Acoustical, plaintiff’s primary duty was soliciting contractors in order to procure orders for his company. He retired from Gainey Acoustical in November 1995, because he “just got tired and didn’t want to work.” He was having breathing problems at the time of his retirement, although he admitted that no doctor ever advised him to stop working. Plaintiff alone made the decision to retire because it was what he wanted to do. In addition, plaintiff’s interrogatory answers state that his “retirement was in no way related to any medical problem. Plaintiff was age 60 in 1995 and decided it was time to retire.” Plaintiff testified that at the time of the 30 November 2000 hearing he was having difficulty breathing, and that he “gave out” when climbing steps or walking. He also testified that he continued to play golf, could walk a mile on level ground and had been walking for exercise for approximately ten years. Plaintiff testified that he was first diagnosed with asbestosis “five or six years” before the 30 November 2000 hearing.
Additional
record evidence was offered by physicians who treated plaintiff. Dr. Robert A. Rostand was the panel physician
appointed by the North Carolina Industrial Commission to examine
plaintiff. Dr. Rostand testified that
plaintiff had asbestosis. A letter
written by Dr. Rostand on 3 December 1999 stated that plaintiff had “classic
asbestos related disease,” proximately caused by “occupational exposure to
asbestos while employed by Southern Flooring and Acoustical,” and that
plaintiff was “not anticipated [to] return to gainful employment.” However, the letter stated that Dr. Rostand
was “unable to date the onset of [plaintiff’s] pulmonary problem.”
Furthermore,
the record includes deposition testimony from Drs. Frederick U. Vorwald and
Sever Surdulescu. Dr. Vorwald testified
that plaintiff had asbestosis, and that plaintiff was “physically disabled from
gainful employment.” Dr. Surdulescu
testified that “it would be very difficult, if not impossible [for plaintiff]
to do any job that require[d] any amount of physical activity” and that he
recommended plaintiff use oxygen whenever he walked. Plaintiff died on 9 May 2005.
II. Procedural History
On
8 April 1999, plaintiff filed Form 18B with the Industrial Commission, seeking
benefits for an occupational disease resulting from exposure to asbestos during
his employment with defendant Southern Flooring, where he was employed from
1969 to April, 1983. Defendants denied
that plaintiff was entitled to benefits, contending that he did “not have a
compensable occupational disease, and that he was not last injuriously exposed
to the hazards of any such disease while employed by defendant-employer.” The claim was initially heard before Deputy
Commissioner W. Bain Jones on 30 November 2000. By an Opinion and Award filed on 30 March 2001 (“2001 Opinion and
Award”), the deputy commissioner concluded that “plaintiff [had] failed to
prove by the greater weight of the evidence that he [had] contracted asbestosis
as a result of his employment with defendant-employer,” and his claim was
therefore denied.
Plaintiff
appealed the 2001 Opinion and Award to the Full Commission. The Full Commission reviewed plaintiff’s
claim on 12 March 2003. On 2 September
2003, the Commission reversed the 2001 Opinion and Award and entered an Opinion
and Award (“2003 Opinion and Award”) which concluded that “plaintiff was last
injuriously exposed to asbestos during his employment with Southern Flooring
and that plaintiff had contracted asbestosis as a result of that
exposure.” The Commission concluded
that plaintiff was entitled to medical compensation as a result of his
asbestosis and remanded the matter to a deputy commissioner for immediate
hearing and Opinion and Award regarding the disability of plaintiff as a result
of his asbestosis.
On
22 September 2004, plaintiff’s claim as to disability was heard by Deputy
Commissioner George T. Glenn, II, upon remand by the Full Commission. At the 2004 hearing no additional lay
testimony was offered, and the only new evidence presented was the deposition
testimony of plaintiff’s treating physicians, Dr. Sever Surdulescu and Dr.
Frederick Vorwald. After the hearing,
Deputy Commissioner Glenn entered an Opinion and Award on 16 June 2005 (“2005
Opinion and Award”) which concluded that plaintiff had been totally disabled
since January 1995 and that he was entitled to compensation from that date
forward at the rate of $481.24 per week.
On 28 June 2005, defendants filed notice of appeal to the Full
Commission from the 2005 Opinion and Award.
The
Full Commission reviewed plaintiff’s claim on 8 November 2005. In its Opinion and Award filed 2 March 2006
(“2006 Opinion and Award”), the Commission found that (1) plaintiff had
received medical treatment for asbestosis-related problems; (2) plaintiff
suffered from breathing problems as a result of asbestosis; (3) plaintiff had
suffered from asbestosis as a result of his employment with defendant-employer
and the disease had rendered him unable to perform gainful employment since 3
December 1999; (4) plaintiff’s breathing problems severely impaired his daily
activities; (5) as a result of asbestosis, it was difficult, if not impossible,
for plaintiff to do any job that required any amount of physical activity; and
(6) plaintiff stopped working in 1995 as a result of his disease and
plaintiff’s asbestos-related condition continued to deteriorate until his
death. The Commission concluded that as
a result of his asbestosis, plaintiff was entitled to permanent and total
disability compensation at the weekly rate of $481.24 from 3 December 1999, the
date of the panel examination by Dr. Rostand, through the date of his death, 9
May 2005. Defendants were ordered to
pay the compensation awarded to plaintiff’s estate in a lump sum, along with
attorney’s fees in the amount of 25% of the compensation awarded. Defendants filed notice of appeal to this
Court from the 2006 Opinion and Award.
On appeal, defendants assign error to two findings of fact in the 2006
Opinion and Award[Note 1] and to the conclusion of law and the award of
the 2006 Opinion and Award.
III.
Findings of Fact
Defendants
assign error to the following findings of the Commission: (1) plaintiff had
suffered from asbestosis as a result of his employment with defendant-employer
and the disease had rendered him unable to perform gainful employment since 3
December 1999; and (2) plaintiff stopped working in 1995 as a result of his
disease and plaintiff’s asbestos-related condition continued to deteriorate
until his death. We determine that the
first contested finding of fact is supported by competent evidence, and is
therefore binding on appeal, but the second contested finding is not supported
by competent evidence, and therefore not binding on appeal.
Except
for jurisdictional questions, failure to assign error to the Commission’s
findings of fact renders them binding on appellate review. Cornell v. Western & S. Life Ins. Co.,
162 N.C. App. 106, 110-11, 590 S.E.2d 294, 297 (2004). Likewise, the Commission’s findings of fact
are binding on appeal if they are supported by competent evidence, even if
there is evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 6, 282
S.E.2d 458, 463 (1981). Put another
way, the Commission’s findings of fact may be set aside on appeal only “when
there is a complete lack of competent evidence to support them.” Young v. Hickory Bus. Furn., 353 N.C.
227, 230, 538 S.E.2d 912, 914 (2000) (citation omitted). Further, on appeal of an award of the
Industrial Commission, “the 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. 679, 681, 509 S.E.2d 411, 414 (1998).
Defendants are correct that the evidence does
not support a finding that plaintiff stopped working in 1995 because of his medical
condition, or that plaintiff’s condition continued to worsen until his
death. There is evidence of plaintiff’s
declining health leading up to 1995, but neither plaintiff’s testimony nor his
answers to interrogatories support a finding that he stopped working for this
reason. In fact, in answer to an
interrogatory regarding this issue, plaintiff stated unequivocally that his
“retirement was in no way related to any medical problem. Plaintiff was age 60 in 1995 and decided it
was time to retire.” Further, there was
no evidence before the Commission as to plaintiff’s condition after Dr.
Surdulescu’s last note in evidence dated 12 October 2004 until plaintiff’s
death on 9 May 2005.
However,
there is competent evidence to support the other challenged finding of
fact. The purpose of Dr. Rostand’s
examination of plaintiff was to determine if he suffered from asbestosis and to
determine the extent of his disease.
Defendants quibble in their
brief over the wording of portions of Dr. Rostand’s report, but considering his
report and testimony in its entirety, Dr. Rostand’s evidence does support the
Commission’s finding of fact that plaintiff suffered from asbestosis as a
result of his employment with defendant-employer. The possibility that some of Dr. Rostand’s statements could
support a contrary finding is of no moment, because the Commission’s findings
based on its evaluation of Dr. Rostand’s testimony and report are entitled to
deference in our review of the findings of fact.
In
addition, Dr. Vorwald began treating plaintiff in 1996, prior to Dr. Rostand’s
panel examination of plaintiff, and the history of plaintiff’s actual treatment
with Dr. Vorwald also supports the findings of Dr. Rostand’s examination. Likewise, although plaintiff did not begin
his treatment with Dr. Surdulescu until 2003, the history of this treatment
also supports Dr. Rostand’s 1999 findings, since plaintiff’s medical course did
in fact continue after 1999 as Dr. Rostand had predicted that it would based on
his diagnosis. For example, Dr. Rostand
concluded in 1999 that plaintiff would in the future “require continued medical
surveillance for his asbestos related pulmonary condition,” a conclusion
affirmed by the testimony and medical records of Drs. Vorwald and Surdulescu,
which both demonstrate that plaintiff’s condition continued to worsen from 1999
until the date of their last documented contact with him, 12 October 2004. Defendant presented no evidence at all to
contradict any of plaintiff’s evidence on any issue, including Dr. Rostand’s
opinion as to plaintiff’s disability.
The
foregoing is competent evidence to support the Commission’s finding that
plaintiff had suffered from asbestosis as a result of his employment with
defendant-employer and the disease had rendered him unable to perform gainful
employment since 3 December 1999.
Additionally, the Commission’s other findings are binding on this Court,
because they are not jurisdictional and defendant did not assign error to them.
IV. Conclusion of Law
The
Commission found as fact that plaintiff was “permanently and totally
disabled.” However, “whether an
employee is disabled [for purposes of workers’ compensation] is a question of
law.” Heffner v. Cone Mills Corp., 83 N.C. App. 84, 87, 349 S.E.2d 70,
73 (1986). The Commission’s legal
conclusions are reviewable by the appellate courts de novo. Grantham v. R. G. Barry Corp., 127
N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997), disc. review denied, 347
N.C. 671, 500 S.E.2d 86 (1998). But,
“where there are sufficient findings of fact based on competent evidence to
support the [tribunal’s] conclusions of law, the [decision] will not be
disturbed because of other erroneous findings which do not affect the conclusions.” Black Horse Run Ppty. Owners Assoc. v.
Kaleel, 88 N.C. App. 83, 86, 362 S.E.2d 619, 622 (1987), cert. denied,
321 N.C. 742, 366 S.E.2d 856 (1988).
In
order to support a conclusion that a claimant is totally and permanently
disabled by exposure to asbestos, and entitled to benefits under N.C. Gen.
Stat. §97-29 (2005)[Note 2], the Commission must find that the claimant
is totally unable, Frazier v. McDonald’s, 149 N.C. App. 745, 752, 562
S.E.2d 295, 300 (2002), cert. denied, 356 N.C. 670, 577 S.E.2d 117
(2003), “as a result of the injury arising out of and in the course of his
employment,” 149 N.C. App. at 752, 562
S.E.2d at 300 (citation omitted), “to earn, in the same or any other
employment, the wages which the employee was receiving at the time of his last
injurious exposure to asbestosis or silicosis,” N.C. Gen. Stat. §97-54 (2005).
The
Commission’s findings that (1) plaintiff had received medical treatment for
asbestosis-related problems; (2) plaintiff suffered from breathing problems as
a result of asbestosis; (3) plaintiff had suffered from asbestosis as a result
of his employment with defendant-employer and the disease had rendered him
unable to perform gainful employment since 3 December 1999; (4) plaintiff’s
breathing problems severely impaired his daily activities; and (5) as a result
of asbestosis, it was difficult, if not impossible, for plaintiff to do any job
that required any amount of physical activity were sufficient to support the
Commission’s conclusion that plaintiff was totally and permanently disabled,
and entitled to benefits under N.C. Gen. Stat. §97-29 starting 3 December
1999. The findings that plaintiff
stopped working in 1995 as a result of his disease, and that plaintiff’s asbestos-related condition continued to deteriorate
until his death, though erroneous, did not affect the Commission’s conclusions
of law, and are therefore not reversible error. Accordingly, we affirm the 02 March 2006 Opinion and Award of the
Industrial Commission.
Affirmed.
Chief
Judge MARTIN and Judge HUNTER concur.
1. Defendant assigns error to a finding of fact in the 2003 Opinion and Award. Though we could exercise our discretion to review that intermediate decision because it is on the merits and necessarily affects the judgment, N.C. Gen. Stat. §1-278 (2005), we decline to do so because the 2006 Opinion and Award contained an almost identical finding which was also assigned as error.
2. N.C. Gen. Stat. §97-29 fixes
compensation rates for total incapacity.