Workers' Compensation_-asbestosis--last injurious exposure--failure to meet burden of
proof
The Industrial Commission did not err by denying plaintiff's claim for compensation for
asbestosis on the ground that plaintiff did not meet his burden of proof that he was last
injuriously exposed to the hazards of asbestos during his employment with defendant-employer
where (1) the Commission did not improperly require plaintiff to produce scientific or medical
evidence of exposure to asbestos for the relevant time period while employed by defendant but
merely noted that there was no such evidence; (2) the Commission did not improperly require
plaintiff to prove that his asbestosis was contracted while he was employed by defendant but
merely noted that plaintiff's asbestosis was not proof of exposure while in the employ of
defendant since he was exposed to asbestos prior to that employment; and (3) the evidence
supported the Commission's determination that plaintiff's testimony that he was exposed to
asbestos on at least 30 days in a consecutive seven-month period while working for defendant
was not credible because such testimony was inconsistent with plaintiff's behavior and reports to
his doctors, and plaintiff's other testimony showed that he did not know when or if he was
exposed to asbestos while working for defendant.
Wallace and Graham, P.A., by Richard L. Huffman, for
plaintiff-appellant.
Cranfill, Sumner, & Hartzog, L.L.P., by Amanda L. Kims for
defendant-appellees Insulating Services, Inc. and USF&G (the
Hartford); Hedrick, Eatman, Garner & Kincheloe, L.L.P, by
Jeffrey A. Kadis for defendant-appellees Insulating Services,
Inc. and the Kemper Group; John F. Morris and Roberta S.
Sperry for defendant-appellees Insulating Services, Inc. and
Hanover Insurance Company (Massachusetts Bay Insurance);
Stiles, Byrum, & Horne, by Henry C. Byrum, Jr., for defendant-
appellees Insulating Services, Inc. and Harleysville Insurance
Company; Alala, Mullen, Holland, & Cooper, P.A., by J. Reid
McGraw, Jr. for defendant-appellees Insulating Services, Inc.
and The Travelers Insurance; and McAngus, Goudelock, & Courie,
P.L.L.C., by Andrew R. Ussery and Daniel B. Eller for
defendant-appellees Insulating Services, Inc. and Royal
Insurance.
STEELMAN, Judge.
Harry Eugene Vaughn (“plaintiff”) appeals an opinion and award
of the North Carolina Industrial Commission (“the Commission”)
denying his claim for compensation for an alleged occupational
disease. For the reasons discussed herein, we affirm.
At the time of the hearing before the deputy commissioner,
plaintiff was sixty-four years old. He completed his education
through the eighth grade, and he received a GED during his military
service. Plaintiff began working in the insulation industry in
1952. He continued working in the insulation business until 1959,
at which time he joined the Army. The majority of the work
plaintiff performed between 1952 and 1959 involved insulation
containing asbestos. Plaintiff left the Army in 1980 and
subsequently worked for various insulation companies.
Plaintiff began his employment with Insulating Services, Inc.
(“defendant-employer”) in 1983. He worked for defendant-employer
until his retirement in February 2000. Plaintiff spent much of his
time working at a facility in Charlotte that is now owned by B.F.
Goodrich (“the Goodrich plant”). Plaintiff's duties for defendant-
employer included installation of insulation for repair work and
new construction at the Goodrich plant and other locations.
Surveys conducted at the Goodrich plant in 1991, 1995 and 1998
indicated that there were areas within the plant where asbestos
existed.
Plaintiff was examined on 12 April 1996 by Dr. Douglas G.
Kelling, the examining physician for the Industrial Commission's
Advisory Medical Committee. Plaintiff provided Dr. Kelling with awritten employment history, which indicated that he worked as an
insulator from 1954 until 1982, during which time he was exposed to
asbestos without benefit of a respirator.
Plaintiff did not mention any specific exposure to asbestos
during his employment with defendant-employer. Dr. Kelling
diagnosed plaintiff with asbestosis.
Plaintiff was also examined by Dr. Patrick Kelly, a Board
certified pulmonologist, on 19 November 1999. Dr. Kelly noted that
“[plaintiff] reports exposure to asbestos [during his employment
with defendant-employer] although it is somewhat unclear exactly in
what form.” Plaintiff did not advise Dr. Kelly of any specific
incidents of exposure to asbestos dust while working for defendant-
employer. Dr. Kelly diagnosed plaintiff with asbestosis.
On 16 May 1997, plaintiff filed a Form 18B alleging asbestosis
and seeking workers' compensation benefits from defendant-employer.
The carriers are the insurance companies that provided worker's
compensation insurance for employer during the course of
plaintiff's employment. Defendants denied liability.
In an opinion and award filed 27 March 2003, the Commission
denied plaintiff's claim for compensation. Plaintiff gave notice
of appeal to this Court on 4 April 2003.
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 theplaintiff's claim is to be viewed in the light most favorable to
the plaintiff. 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).
However, if there is any evidence in the record to support a
finding of fact by the Commission, it is conclusive on appeal, even
if there is substantial evidence to the contrary. Id. Moreover,
the Commission is the sole judge of the credibility of witnesses
and the weight to be given the evidence. Russell v. Lowes Prod.
Distr., 108 N.C. App. 762, 765, 425 S.E.2d 454, 457 (1993).
In his first assignment of error, plaintiff argues the
Commission used the incorrect legal standard to determine if
plaintiff was injuriously exposed to asbestos while employed by
Insulating Services. We disagree.
N.C. Gen. Stat. § 97-57 (2003) states:
In any case where compensation is payable for
an occupational disease, the employer in whose
employment the employee was last injuriously
exposed to the hazards of such disease, and
the insurance carrier, if any which was on the
risk when the employee was so last exposed
under such employer, shall be liable.
The statute goes on to explain the phrase “last injuriously
exposed” in the context of asbestosis claims:
For the purpose of this section when an
employee has been exposed to the hazards of
asbestosis or silicosis for as much as 30
working days, or parts thereof, within seven
consecutive calendar months, such exposure
shall be deemed injurious but any less
exposure shall not be deemed injurious . . . .
Id. To recover under this statute, the plaintiff must show: (1)
that he has a compensable occupational disease and (2) that he was
“last injuriously exposed to the hazards of such disease” indefendant-employer's employment. Rutledge v. Tultex Corp./Kings
Yarn, 308 N.C. 85, 88, 301 S.E.2d 359, 362 (1983).
The plaintiff contends that the Commission made four errors of
law in coming to its conclusions. First, plaintiff argues the
Commission improperly required him to produce scientific or medical
evidence of exposure to asbestos for the relevant time period while
in defendant's employ. Plaintiff is correct that there is no need
for such expert testimony. Austin v. Continental General Tire, 141
N.C. App. 397, 404, 540 S.E.2d 824, 829 (2000), rev'd on other
grounds, 354 N.C. 344, 553 S.E.2d 680 (2001). In addressing the
issue of producing scientific evidence of exposure to toxic
substances, this Court stated:
It is unreasonable to assume that the
legislature intended an employee to bear the
burden of making [toxicity] measurements
during his employment in order to lay the
groundwork for a worker's compensation claim.
Such an interpretation of the statute would
make it virtually impossible for an employee
to successfully bring suit for compensation .
. . due to the difficulty he would encounter
in attempting to make measurements of [toxic
airborne substances] on his employer's
premises. A construction of the statute which
defeats its purpose . . . would be irrational
and will not be adopted by this Court.
Id., citing Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 333-34,
339 S.E.2d 490, 496 (quoting McCuiston v. Addressograph-Multigraph
Corp., 308 N.C. 665, 668, 303 S.E.2d 795, 797 (1983)). This does
not mean, however, that the Commission cannot consider expert
testimony, or the lack thereof, along with lay testimony, in
weighing the evidence and determining whether claimant has met his
burden of proof. Plaintiff has the burden of proving his claim by the “greater
weight of the evidence” or by a “preponderance of the evidence.”
Phillips v. U.S. Air, 120 N.C. App. 538, 541, 463 S.E.2d 259, 261
(1995). Thus, the plaintiff must present credible evidence of
exposure sufficient to prove that he was last injuriously exposed
while working for the defendant-employer.
Second, plaintiff argues that the Commission improperly
determined that his asbestosis was caused by exposure prior to his
employment with defendant. With regard to the issues of the extent
of exposure, prior exposure and causation, this Court has said that
“last injurious exposure” did not have to cause or even
significantly contribute to a claimant's disease, rather it is
sufficient for it to be “an exposure which proximately augmented
the disease to any extent, however slight.” Cain v. Guyton, 79 N.C.
App. 696, 701, 340 S.E.2d 501, 505, aff'd 318 N.C. 410, 348 S.E.2d
595 (1986), quoting Rutledge, 308 N.C. at 89, 301 S.E.2d at 362-63.
Therefore it is not necessary for plaintiff to prove what caused
his asbestosis, or where he contracted it. He must simply prove
that he has asbestosis, and that the last place of employment where
he was exposed to asbestos on at least 30 separate days within a
consecutive seven month period was with the defendant-employer.
Prior exposure may be relevant when actual exposure to asbestos in
a defendant's employ is in question. If a plaintiff has not been
exposed in prior employment, and has asbestosis, then that could
give rise to an inference that he was exposed (and last injuriously
exposed) while working for defendant-employer. Third, plaintiff argues that the Commission erred in refusing
to rely on inferences that can be drawn from the evidence. As
stated above, the Commission is the sole determiner of the
credibility of the witnesses, and the weight to be given to the
evidence. The Commission must then make a determination
considering the evidence in the light most favorable to the
plaintiff. This does not mean, however, that the Commission must
accept as true all evidence favoring plaintiff and make all
inferences that support plaintiff's claim. It is up to the
Commission to make the final determination in weighing the
evidence. “Indeed the Commission is required to evaluate the
credibility of the evidence and reject any evidence it finds as not
convincing.” Phillips, 120 N.C. App. at 542, 463 S.E.2d at 262.
The plaintiff must present credible evidence of exposure sufficient
to prove that he was last injuriously exposed while working for the
defendant-employer.
Finally, plaintiff argues that the Commission placed an
impossible burden on him to prove his case. As previously stated,
“The degree of proof required of a party plaintiff under the Act is
the 'greater weight' of the evidence or 'preponderance' of the
evidence.” Id at 541, 463 S.E.2d at 261.
The Commission found the plaintiff's testimony that he was
regularly exposed to asbestos in defendant's employ over the
relevant period not to be credible, and thus afforded it little
weight. It based its finding on inconsistencies between
plaintiff's testimony and “his behavior and reports to his
doctors.” The Commission found that even if it afforded theplaintiff's own testimony greater weight, this testimony was not
sufficient to meet plaintiff's burden of proof:
The only testimony on this issue came from
plaintiff when he described working at the
tank farm at the Goodrich plant in 1996.
Plaintiff testified that he worked in that
area for a month and a half or two months, and
that asbestos abatement crews were later
called in 1999 to work in those areas.
Plaintiff believed that he was exposed to
asbestos when he worked on the tanks because
the asbestos abatement crews, with their
plastic tents, were called to work there
later. On further clarification of this
potential exposure, plaintiff explained that
he worked nearly 40 tanks in the tank farm for
“almost a month and a half” and that he later
saw the asbestos abatement tents on two of the
tanks. During this time period plaintiff was
working four days per week, and thus a month
and a half would have consisted of 24 to 28
days. Two months at four days a week would
amount to about 32 days. Even assuming that
plaintiff's testimony is true, and that two of
the tanks had asbestos as indicated by
subsequent work by an abatement crew, at the
average rate of completing one to two tanks
per day, plaintiff's testimony does not
establish 30 days of exposure within a seven
consecutive month period. Furthermore,
exposure to asbestos during employment with
defendant-employer cannot be assumed from
plaintiff's diagnosis of asbestosis, because
plaintiff's exposure to asbestos before his
employment with defendant-employer was
sufficient to cause the disease. The greater
weight of the credible evidence is that
plaintiff was not exposed to the hazards of
asbestos for 30 or more working days during a
seven consecutive month period while working
for defendant-employer.
There is competent evidence in the record to support the
Commission's findings. Although plaintiff was employed by
defendant-employer when he was examined by Dr. Kelling, plaintiff
never mentioned any potential exposure to asbestos during his
examination. Moreover, plaintiff's own testimony shows that he didnot know when or if he was exposed to asbestos while working for
defendant-employer. Consequently, the Commission, as the sole
judge of credibility, determined that plaintiff's testimony that he
was exposed on at least 30 days in a consecutive seven month period
in 1996 while working for defendant-employer was entitled to little
weight.
Based on the Commission's findings of fact, we conclude that
the Commission applied the correct standard under N.C. Gen. Stat.
§ 97-57 in determining plaintiff did not meet his burden of proving
last injurious exposure under N.C. Gen. Stat. § 97-57.
The Commission did not require plaintiff to submit scientific
or medical testimony, it merely noted that there was none. The
Commission did not improperly require that plaintiff prove his
asbestosis was contracted while employed by defendant-employer, it
merely noted that plaintiff's asbestosis was not proof of exposure
while in the employ of defendant-employer since he was exposed
prior to that employment. The Commission was not required to make
inferences supporting plaintiff's position if it determined the
evidence was not credible. Finally, there is nothing in the record
to support plaintiff's contention that he was held to an
“impossible burden.” The record supports the Commission's
conclusion that plaintiff failed to prove his claim by a
preponderance of the evidence.
In the instant case, the Commission found that plaintiff did
not meet his burden of proof that he was last injuriously exposed
to the hazards of asbestosis during his employment with defendant-
employer. There is credible evidence to support the Commission'sfindings, thus, its denial of compensation under N.C. Gen. Stat. §
97-57 must be affirmed.
Having determined that there is competent evidence in the
record to support the Commission's findings of fact, and that those
findings of fact support it's conclusions of law that plaintiff was
not last injuriously exposed to the hazards of asbestosis while
employed by defendant-employer, we need not reach plaintiffs
remaining assignments of error.
AFFIRMED.
Judges McGEE and CALABRIA concur.
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