Appeal by plaintiff from opinion and award entered 26 July
2001 by the Full Commission of the North Carolina Industrial
Commission. Heard in the Court of Appeals 22 August 2002.
Scudder & Hedrick, by Samuel A. Scudder, for plaintiff-
appellant.
Marshall Williams & Gorham, L.L.P., by Ronald H. Woodruff, for
defendant-appellees.
MARTIN, Judge.
Plaintiff appeals from an opinion and award of the Industrial
Commission denying a claim for compensation and death benefits for
the death of Norman Hatcher (“decedent-employee”). The record
reflects that Norman Hatcher filed an Industrial Commission Form
18, dated 3 December 1991, alleging that his exposure to asbestos
while working for defendant-employer had resulted in “asbestosis
and other asbestos-related lung diseases.” He filed a Form 33,
dated 21 July 1994, requesting that the claim be assigned for a
hearing. Norman Hatcher died on 25 April 1995 due to lung cancer
and the executor of his estate was substituted as plaintiff. A deputy commissioner denied the claim on 27 March 2000 and
plaintiff appealed to the Full Commission. By an opinion and award
filed 26 July 2001, the Full Commission found that decedent-
employee had been exposed to asbestos fiber and dust throughout his
46-year career as a millwright, carpenter, and welder, and that
this exposure had “likely caused” both his asbestosis and lung
cancer. The Commission also found that decedent-employee worked
for defendant-employer at a location insured by defendant-carrier
for several different periods, the last one ending in 1976, during
which he was exposed to asbestos fiber and dust in the workplace.
In addition, the Commission found that, after retiring in 1978,
decedent-employee returned to work at intervals. In particular,
plaintiff was employed by Mundy Industrial Contractors, Inc.,
(“Mundy”) in 1988 and 1989.
The Commission found that:
[w]hile employed as a millwright for
defendant-employer and then for Mundy at the
General Electric plant through 1989, decedent
was exposed to asbestos in the form of
insulation. Decedent, in some instances,
actually saw and consequently inhaled the
asbestos dust while working for Mundy at the
General Electric plant.
It also found that decedent-employee's last employment in any
capacity was with Mundy in 1989. The medical testimony indicated,
and the Commission found, that decedent-employee was not disabled
by asbestosis but became disabled after he developed lung cancer.
The Commission concluded that plaintiff's last injurious exposure
to asbestos did not occur while he was employed by defendant Daniel
International Corp. and denied his claim against defendants.
_________________________________
On appeal, plaintiff asserts the Commission erred in denying
benefits for asbestosis and lung cancer because (1) there was not
competent evidence in the record to support the Commission's
findings regarding decedent-employee's last injurious exposure to
asbestos and (2) the Commission applied the wrong legal standard in
evaluating both claims. Appellate review of a decision of the
Industrial Commission is limited to a determination of whether
there is competent evidence in the record to support the
Commission's findings of fact and whether those findings adequately
support the conclusions of law and award.
See Boles v. U.S. Air,
Inc., 148 N.C. App. 493, 560 S.E.2d 809 (2002). If properly
supported, the Commission's findings of fact are binding on appeal
even though the evidence might also support contrary findings.
See
Locklear v. Stedman Corp., 131 N.C. App. 389, 508 S.E.2d 795
(1998). The Commission's conclusions of law are reviewable by the
appellate courts. N.C. Gen. Stat. § 97-86;
Hilliard v. Apex
Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982).
Under G.S. § 97-52, “[d]isablement or death of an employee
resulting from an occupational disease” is compensable under the
Workers' Compensation Act (“the Act”). The Act contains a list of
diseases that qualify as occupational diseases.
See N.C. Gen.
Stat. § 97-53 (2002). Asbestosis is specifically enumerated under
G.S. § 97-53(24) and is compensable if a causal connection is shown
between the disease and employment.
See N.C. Gen. Stat. § 97-57;
Clark v. ITT Grinnell Industrial Piping, Inc., 141 N.C. App. 417,539 S.E.2d 369 (2000). Lung cancer, though not specifically
enumerated, may also qualify as an occupational disease if it
satisfies the requirements of the statute's catch-all provision,
G.S. § 97-53(13):
Any disease . . . which is proven to be due to
causes and conditions which are characteristic
of and peculiar to a particular trade,
occupation or employment, but excluding all
ordinary diseases of life to which the general
public is equally exposed outside of the
employment.
Certain occupational diseases develop gradually and after
cumulative or repeated exposure to the hazards of the disease.
See
Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983).
Because an employee may be exposed to those hazards over the course
of a career with several different employers, the General Assembly
set out guidelines for employer and carrier liability for
occupational disease based on when the employee was “last
injuriously exposed” to the hazards of the disease. N.C. Gen.
Stat. § 97-57 (2002).
For purposes of asbestosis or silicosis, the statute defines
injurious exposure as exposure of at least 30 days or parts thereof
in seven consecutive months.
See id. Furthermore, the statute
creates a presumption that the last 30 days of work involving
exposure to asbestos is the last injurious exposure for purposes of
employer liability.
See Barber v. Babcock & Wilcox Constr. Co.,
101 N.C. App. 564, 400 S.E.2d 735 (1991). For all other
occupational diseases, including those which fall under G.S. § 97-
53(13), last injurious exposure has been described as “'an exposurewhich proximately augmented the disease to any extent, however
slight.'”
Rutledge, 308 N.C. at 89, 301 S.E.2d at 362-63
(citations omitted).
In the present case, plaintiff contends decedent-employee's
last injurious exposure to the hazards of both asbestosis and lung
cancer occurred in or prior to 1976 while he was employed with
defendant-employer, and defendant-carrier was on the risk. As to
the asbestosis claim, plaintiff argues that the Commission's
finding that plaintiff was exposed to asbestos while employed with
Mundy for at least 30 days in seven consecutive months was not
supported by the evidence. First, plaintiff asserts that the only
evidence that could support the finding of exposure to asbestos was
deposition testimony of the decedent-employee and that such
testimony was not competent evidence due to the decedent-employee's
age of 81 years, his indication that he could not remember well or
was confused by the questions at deposition, and contradictory
testimony about his exposure while working for Mundy.
Although a witness who can remember nothing is not competent
to testify, a weak or impaired memory goes not to the competency of
the evidence, but rather the weight to be accorded the testimony.
See State v. Witherspoon, 210 N.C. 647, 188 S.E. 111 (1936). The
deposition testimony at issue was included in the stipulated
exhibits and there is no indication that plaintiff objected to its
admission. Furthermore, it is the sole province of the Commission
to determine the credibility of witnesses and the weight to be
given their testimony.
See Boles, supra. A review of thedeposition of decedent-employee does not indicate that he was
clearly incompetent to testify; absent such, this Court may not
disturb the Commission's decision with respect to the weight to be
given the evidence and the findings based upon it.
Next, plaintiff argues that evidence of asbestos exposure must
be “quantifiable,” i.e., that the Commission must be able to point
to, or count, the number of days in which exposure occurred in
order to determine whether decedent sustained exposure of at least
30 days or parts thereof in seven months as required under the
statute. Without such “quantifiable” evidence, plaintiff argues
that the Commission cannot find as a fact that such exposure
occurred. The cases plaintiff cites in support of this argument do
not necessarily indicate that the Commission must point to 30
specific days of exposure as long as there is competent evidence
from which such exposure can be inferred, such as an average number
of days each week or month in which an employee was exposed over
time.
See, e.g., Woodell v. Starr Davis Co., 77 N.C. App. 352, 335
S.E.2d 48 (1985). These cases, however, do not limit the
Commission's ability to rely on inferences that may reasonably be
drawn from the evidence of record.
See Ivey v. Fasco Industries,
109 N.C. App. 123, 425 S.E.2d 744 (1993).
Evidence of decedent-employee's asbestos exposure at Mundy
includes a social security earnings statement showing that he
worked for Mundy in 1988 and 1989, earning annual totals of
$7,113.97 and $3,000.11 respectively. Decedent-employee testified
at his deposition that he worked for Mundy for at least a six-monthperiod at one point. In response to questions about the presence
of asbestos dust in the work environment at Mundy, decedent-
employee responded: “Sometimes. Not all the time, but just
sometimes during the time I was working with Mundy.” This evidence
supports a reasonable inference that decedent-employee was exposed
to asbestos for at least 30 days or parts thereof within seven
consecutive months while working for Mundy.
T
he Commission's
finding applied the correct legal standard according to G.S. § 97-
57. Therefore, we decline to disturb the Commission's conclusion
that decedent-employee's last injurious exposure to the hazards of
asbestosis occurred with Mundy.
With respect to the lung cancer claim, plaintiff argues that
the Commission applied the incorrect legal standard in determining
decedent-employee's last injurious exposure to the hazards of lung
cancer. In order to qualify as injurious under G.S. § 97-57, an
occupational exposure to the hazards of lung cancer need only
proximately augment the condition, however slightly.
See Rutledge,
supra. The Commission found that “[d]ecedent's lung cancer . . .
was likely
caused by his exposure to asbestos in his various work
environments” (emphasis added). Thus, the exposure to asbestos
sustained by decedent while working for both defendant-employer and
Mundy qualifies as “injurious” under G.S. § 97-57. Other findings
by the Commission clearly indicate that Mundy, not defendant-
employer, was decedent's last employer. Therefore, despite the
Commission's failure to couch its findings in terms of proximate
augmentation of the lung cancer, we hold those findings support theCommission's conclusion with respect to the lung cancer claim that
“decedent's last injurious exposure to asbestos did not occur while
he was employed by the defendant-employer . . . .”
Plaintiff next challenges the adequacy of the evidence to
support the Commission's findings. Plaintiff asserts that all of
the medical opinion testimony on causation and increased risk for
lung cancer followed a question by defense counsel describing the
decedent as being exposed to asbestos “on a regular basis.”
Plaintiff contends there is no evidence that decedent was exposed
to asbestos on a regular basis with Mundy, and thus any findings
based on the subsequent medical opinions offered by the witness
could only lead to the conclusion that decedent was last
injuriously exposed with defendant-employer. We disagree.
In response to defense counsel's question, Dr. Credle, the
expert medical witness, testified that decedent-employee's
occupational asbestos exposure put him at increased risk for
contracting lung cancer compared to the general population and that
the exposure was a significant contributing factor to his
development of the disease. Dr. Credle had also testified earlier
that decedent's occupational asbestos exposure “was the likely
cause” of his lung cancer and, in response to earlier hypothetical
questions that “the more you're exposed [to asbestos], the more
likely you are to have disease and the more likely it is to be bad
disease.” Taken as a whole, this evidence supports the
Commission's finding of a causal link between decedent's lung
cancer and “his various work environments.” This finding, in turn,supports the Commission's conclusion that decedent-employee was not
last injuriously exposed to asbestos while employed by defendant-
employer.
Affirmed.
Judges TYSON and THOMAS concur.
*** Converted from WordPerfect ***