1. Workers' Compensation--motion to withdraw or stay opinion--subrogation lien
The Industrial Commission did not err in a workers' compensation case by denying
defendants' motion to withdraw or to stay the effect of the opinion and award of the full
Commission on the basis of defendants' subrogation claims, because: (1) a final award has not
yet been entered in this matter, and thus, the Industrial Commission does not have jurisdiction
over defendants' subrogation claim; and (2) until the award becomes final, jurisdiction over
defendants' subrogation claim lies with the superior court.
2. Workers' Compensation-_permanent injury award--lung damage
The Industrial Commission did not abuse its discretion in a workers' compensation case
by awarding plaintiff employee $40,000 for his lung damage even though defendant contends the
lungs are but a single organ entitling a maximum award of $20,000 for permanent injury to the
lungs, because this award was appropriate under N.C.G.S. § 97-31(24) when there was
competent medical evidence to support the findings regarding the significance of each organ to
the body's general health and well-being.
3. Workers' Compensation-_disability-_proof not required
The Industrial Commission did not err in a workers' compensation case by holding that a
disability need not be proven in order for N.C.G.S. § 97-31(24) to apply.
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 anadditional 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 permanentinjury 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. [1] 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 IndustrialCommission 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 onthe basis of defendants' subrogation claims. This assignment of
error is without merit.
[2] 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 oflung 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.
[3] 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.
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