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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
EILEEN C. PAYNE, Administratrix of the Estate of HERBY S. PAYNE,
Deceased, Employee, Plaintiff, v.
CHARLOTTE HEATING & AIR
CONDITIONING, Employer, EMPLOYERS MUTUAL INSURANCE COMPANY,
ROSS AND WITMER, INC., Employer, TRAVELERS
INSURANCE COMPANY, Carrier, Defendants
Filed: 16 August 2005
1. Appeal and Error--assignment of error--supporting authority required
Defendants' contention that workers' compensation death benefits were not properly
before the Industrial Commission was not addressed because they failed to cite authority
supporting their assignment of error.
2. Workers' Compensation--death benefits--opportunity to present evidence
Although defendants contended that they had not had the opportunity to present evidence
on a workers' compensation death benefit claim, the record shows that defendants had notice that
death benefits would be at issue and chose to rely on the contention that the question was not
properly before the Commission.
3. Workers' Compensation--asbestosis--death benefit--time limit_equal protection
The time limitation for filing a claim for workers' compensation death benefits involving
asbestosis and silicosis (N.C.G.S. § 97-61.6) violates the Equal Protection Clause under the
rational basis test. Since the parties here agreed that plaintiff's claim was within the time limit
applicable to other occupational diseases, plaintiff's claim was timely filed.
4. Workers' Compensation--asbestosis--cause of death--finding by Commission--
supported by evidence
The Industrial Commission's finding in a workers' compensation case that the deceased
suffered from asbestosis is supported by competent evidence and is binding on appeal. The
Commission extensively reviewed the medical evidence and is entitled to resolve questions of
credibility and weight in plaintiff's favor.
5. Workers' Compensation--asbestosis--cause of disability--contributing cause of
death--supported by evidence
There was evidence in the record to support the Industrial Commission's decision in a
workers' compensation case that the deceased's asbestosis caused his disability and significantly
contributed to his death.
6. Workers' Compensation--asbestosis--last exposure--findings supported by evidence
The evidence is sufficient to support the Industrial Commission's finding in a workers'
compensation case that a deceased's last injurious exposure to asbestos occurred during his
employment with defendant-Ross & Witmer. There was testimony that the deceased worked
directly with and supervised people cutting and installing asbestos wallboard and asbestos cloth
and the deceased's supervisor testified that the deceased would have been exposed to asbestosany time he was on the job site.
Appeal by defendants Ross and Witmer, Inc. and Travelers
Insurance Company from Opinion and Award of the North Carolina
Industrial Commission entered 14 July 2003. Heard in the Court of
Appeals 12 October 2004.
Wyrick, Robbins, Yates & Ponton, L.L.P., by K. Edward Greene
and Kathleen A. Naggs; Wallace & Graham, P.A., by Mona Lisa
Wallace, Richard L. Huffman; and M. Reid Acree, for plaintiff-
Nexsen, Pruet, Adams, Kleemeier, P.L.L.C., by Sean M. Phelan,
for defendants-appellees Charlotte Heating & Air Conditioning
and Employers Mutual Insurance Company.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by C. J.
Childers, for defendants-appellants Ross and Witmer, Inc. and
Travelers Insurance Company.
This appeal arises out of Herby S. Payne's workers'
compensation claim for disability benefits based on asbestosis.
Subsequent to the hearing on his claim, but before a decision was
rendered, Mr. Payne died and his wife Eileen C. Payne, the
administratrix of his estate, was substituted as plaintiff.
Defendants Ross and Witmer, Inc. ("R&W") and Travelers Insurance
Company have appealed from the Industrial Commission's opinion and
award (a) granting total disability benefits for a period preceding
Mr. Payne's death and death benefits under N.C. Gen. Stat. § 97-39
(2003) and (b) finding that Mr. Payne was last injuriously exposed
to the hazards of asbestosis while employed at R&W.
The primary issues on appeal are whether the death benefitsclaim was properly before the Commission and, if so, whether it is
time-barred by N.C. Gen. Stat. § 97-61.6 (2003). We hold that the
Full Commission had authority to decide the death benefits claims.
Further, because we have concluded that N.C. Gen. Stat. § 97-61.6
violates the Equal Protection Clause, we hold that the claim for
death benefits was timely. With respect to defendants' arguments
regarding the merits of plaintiff's claim for benefits, since the
Commission's findings are supported by competent evidence, the
appropriate standard of review compels that we affirm the
Commission's opinion and award.
Mr. Payne worked at
Charlotte Heating & Air Conditioning
1960 through 1966. He was responsible for servicing furnaces and
boilers, during the course of which he was exposed to asbestos
Mr. Payne mixed "asbestos mud"
by pouring asbestos
powder into buckets and adding water. He used the mud to repair
boilers and insulate pipes. He also worked with asbestos rope and
asbestos millboard, cutting it to size and installing it.
he was, as a result, exposed to airborne asbestos dust, he was not
provided and never used any form of respiratory protection.
After working for other companies in positions not involving
exposure, Mr. Payne was employed by R&W from
1972 to 1975. At R&W, Mr. Payne primarily fabricated and installed
duct work from sheet metal, but he also "set some furnaces." At
one point during his employment with R&W, Mr. Payne worked on an
apartment complex construction project involving furnaceinstallations in 160 to 170 apartment units. Each furnace was
surrounded by asbestos millboard and asbestos cloth. Mr. Payne was
the supervisor of the crew and the Commission found was exposed to
airborne asbestos dust without having respiratory protection.
After Mr. Payne's employment with R&W ended, his subsequent
not expose him to asbestos products to any significant
extent. In 1989, Mr. Payne developed back problems that required
surgery. After the surgery, he remained symptomatic and did not
return to work, but rather began receiving Social Security
disability. Mr. Payne and his wife both testified that ultimately
his back symptoms were no longer the cause of his disability.
In January 1994, Mr. Payne saw a pulmonologist regarding a
notable worsening of his ability to breathe. Mr. Payne had smoked
one to two packages of cigarettes daily until quitting in 1993.
Pulmonary function studies indicated very severe obstructive lung
disease and severe emphysema. Upon further x-rays and
examinations, Mr. Payne was diagnosed with emphysema, asbestosis,
and pleural plaques related to asbestos
exposure. Two National
Institute of Occupational Safety and Health ("NIOSH") certified "B
readers," who evaluate whether workers exposed to dust in their
work environments have dust-related disease, also found that Mr.
Payne had asbestosis or disease related to asbestos exposure
third certified "B reader"
found pulmonary abnormalities caused by
asbestosis, but concluded that asbestos exposure probably did not
contribute to Mr. Payne's pulmonary impairment.
In February 1996, Mr. Payne filed an Industrial CommissionForm 18B seeking total disability benefits based on asbestosis. A
hearing was conducted on Mr. Payne's claim on 3 May 2000 by deputy
commissioner Morgan S. Chapman. On 16 October 2000, Mr. Payne
died. The deputy commissioner ultimately ordered that the record
remain open until 15 September 2001, almost a year later. On 21
November 2001, the deputy commissioner issued an opinion and award,
sustaining defendants' objection to any ruling on the issue of
death benefits; holding that, in any event, death benefits were
barred by N.C. Gen. Stat. § 97-61.6; and finding that Mr. Payne did
not contract asbestosis and did not suffer any disability as a
result of his exposure to asbestos.
On 14 July 2003, the Full Commission filed an opinion and
award, finding that the issue was properly before the Commission;
that Mr. Payne did indeed have asbestosis; that his asbestosis
caused his total disability and significantly contributed to his
death; and that his last injurious exposure occurred during his
employment with R&W. Accordingly, the Commission awarded total
disability compensation from 19 October 1999 through 16 October
2000 and death benefits under N.C. Gen. Stat. § 97-39 . Defendants
R&W and Travelers have appealed.
 Defendants first contend that the issue of death benefits
was not properly before the Commission
hearing was first requested, Mr. Payne was still alive. He died
after the hearing, but prior to the entry of the deputy
's opinion and award. On 28 February 2001, the deputycommissioner substituted
Mrs. Payne, the administratrix for Mr.
Payne's estate, as plaintiff and, on 6 September 2001, Mrs. Payne
filed an amended Form 18B to assert a claim for death benefits.
(See footnote 1)
The Full Commission concluded that as a result of the amended Form
18B, "the issue of decedent's eligibility for death benefits is
before the Full Commission."
Defendants contend that the amended Form 18B and the
substitution of Mrs. Payne as administratrix were insufficient to
bring the issue of death benefits before the Commission.
Defendants have not, however, cited any authority to support this
contention. Under Rule 28(b)(6) of the Rules of Appellate
Procedure, "[a]ssignments of error . . . in support of which no
reason or argument is stated or authority cited
, will be taken as
abandoned." (Emphasis added.) We are not, therefore, free to
revisit the Commission's determination that the amended Form 18B
allowed the Commission to address the issue of death benefits.
 Defendants have, however, cited authority for their
contention that they "were not afforded an opportunity to present
evidence or investigate the matter in light of a claim for death
benefits." Nonetheless, the record reveals that defendants
questioned plaintiff's expert witness extensively regarding Mr.
Payne's death and that plaintiff filed her amended Form 18B on or
about 6 September 2001, prior to the closing of the record and morethan two months before the deputy commissioner filed her opinion
and award. While on notice that plaintiff intended to pursue death
defendants did not ask the deputy commissioner to extend
the time for completing the record. Defendants apparently chose to
rely upon their contention that the issue was not properly before
After the deputy commissioner declined to address the issue of
death benefits, plaintiff, in her Form 44 "Application for Review,"
specifically assigned as error the deputy commissioner's decision
to "sustain the Defendant's objection on the issue of death
benefits being a part of the claim since Plaintiff died subsequent
to the hearing, since the death certificate was admitted into
evidence and since Plaintiff filed an Amended I.C. Form 18B
specifically alleging death benefits on account of his asbestosis."
It is well established that "the full Commission has the duty and
responsibility to decide all matters in controversy between the
parties, and, if necessary, the full Commission must resolve
matters in controversy even if those matters were not addressed by
the deputy commissioner." Crump v. Independence Nissan
, 112 N.C.
App. 587, 589, 436 S.E.2d 589, 592 (1993) (internal citations
Specifically, a "plaintiff, having appealed to the full
Commission pursuant to G.S. 97-85 and having filed his Form 44
'Application for Review,' is entitled to have the full Commission
respond to the questions directly raised by his appeal." Vieregge
v. N.C. State Univ.
, 105 N.C. App. 633, 639, 414 S.E.2d 771, 774
Thus, once plaintiff included the issue of death benefits in
her Form 44, defendants were on notice that the Full Commission
would be required to address that issue.
At that point, defendants
had a strategic choice to make. They could (1) rest on their
contention _ accepted by the deputy commissioner _ that the
question of death benefits was not properly before the Commission
(2) request that the Full Commission allow them an opportunity
to present evidence with respect to death benefits. "The
Commission, when reviewing an award by a deputy commissioner, may
receive additional evidence, even if it was not newly discovered
evidence." Cummins v. BCCI Constr. Enters.
, 149 N.C. App. 180,
183, 560 S.E.2d 369, 371-72, disc. review denied
, 356 N.C. 611, 574
S.E.2d 678 (2002).
If the Full Commission chose to address the
issue of death benefits on the merits and determined that the
transcript and record were insufficient to resolve that issue, then
the Commission would have been required to "conduct its own hearing
the matter for further hearing." Crump
, 112 N.C. App. at
589, 436 S.E.2d at 592.
Defendants, however, chose not to ask the Commission for the
opportunity to present additional evidence. The record contains no
request by defendants at any time (1) for an opportunity to
supplement the record with medical evidence or other testimony
regarding death benefits, (2) for a remand to the deputy
commissioner for a hearing on that issue, or (3) for an evidentiary
hearing before the Full Commission. In defendants' brief to the
Full Commission, included in the record on appeal, defendants argueonly (1) that the death benefits issue was not properly before the
Commission because Mr. Payne died after the hearing before the
deputy commissioner and (2) that plaintiff's evidence was
insufficient to support an award of death benefits. Defendants'
brief contains no suggestion that additional evidence should be
taken on the death benefits issue.
The record thus reflects that defendants had notice that death
benefits would be at issue at a time when they still could
offered evidence. Defendants have not established that they were
denied an opportunity to be heard because they did not ask to
present additional evidence. See Cummins
, 149 N.C. App. at 185,
560 S.E.2d at 373 (defendants were not denied an opportunity to be
heard when they had a doctor's records for two years and made no
motion to depose that doctor until after the Full Commission
entered its opinion and award). Compare Allen v. K-Mart
, 137 N.C.
App. 298, 302, 528 S.E.2d 60, 63-64 (2000) (defendants were denied
an opportunity to be heard when the Full Commission admitted
evidence of two independent medical examinations ("IMEs") submitted
by plaintiff, but did not rule until after filing its opinion and
award on defendants' five objections to the allowance of the IMEs,
defendants' request to depose two physicians, and on defendants'
six requests to have plaintiff submit to an IME by a physician of
defendants' choosing). We, therefore, hold that defendants have
not demonstrated that they were denied notice and an opportunity to
be heard on the issue of death benefits.
 Defendants argue that, even if the issue of death benefits
was properly before the Commission, the claim was barred by N.C.
Gen. Stat. § 97-61.6. Plaintiff argues in response that the
statute violates the Equal Protection Clause and is, therefore,
unconstitutional. The Full Commission awarded death benefits to
plaintiff without specifically addressing the constitutionality of
The parties agree, however, that if N.C. Gen. Stat.
§ 97-61.6 controls, then plaintiff is barred from seeking death
Paragraph 4 of N.C. Gen. Stat. § 97-61.6 sets out the time
frame within which a claim for death benefits may be brought if the
death resulted from asbestosis and silicosis:
[S]hould death result from asbestosis or
silicosis within two years from the date of
, or should death result from
asbestosis or silicosis, or from a secondary
infection or diseases developing from
asbestosis or silicosis within 350 weeks from
the date of last exposure
and while the
employee is entitled to compensation for
disablement due to asbestosis or silicosis,
either partial or total, then in either of
these events, the employer shall pay, or cause
to be paid compensation in accordance with
(Emphasis added.) In comparison, for occupational diseases other
than asbestosis or silicosis,
N.C. Gen. Stat. § 97-38 (2003)
provides for payment of death benefits "[i]f death results
proximately from a compensable injury or occupational disease and
within six years thereafter, or within two years of the final
determination of disability
, whichever is later . . . ." (Emphasis
added). Thus, for asbestosis and silicosis, the time limitationruns from the date of last exposure, while for all other
occupational diseases, the focus is on the occurrence of the
occupational disease and the final determination of disability.
Plaintiff contends that N.C. Gen. Stat. § 97-61.6
those with asbestosis and silicosis of equal protection under the
law. Plaintiff points out: "Victims of [asbestosis and
silicosis], because of paragraph 4 of N.C. Gen. Stat. §97-61.6, are
the only group of individuals suffering from occupational diseases
whose claims must be diagnosed within a certain time period from
date of last exposure; thus to preserve their future death
benefits, these individuals would have to file claims prior to
diagnosis or death." Plaintiff argues that there is no rational
basis for providing a substantially shorter time frame for death
benefit claims based on asbestosis or silicosis than death benefits
claims based other latent occupational diseases.
The principles governing our decision in this case were set
out by this Court _ and approved by the North Carolina Supreme
Court _ in Walters v. Algernon Blair
, 120 N.C. App. 398, 462 S.E.2d
232 (1995), aff'd per curiam
, 344 N.C. 628, 476 S.E.2d 105 (1996),
, 520 U.S. 1196, 137 L. Ed. 2d 700, 117 S. Ct. 1551
addressed the question whether N.C. Gen. Stat. §
97-63 (1991), "which treats employees with asbestosis and silicosis
differently from employees with other occupational diseases,"
violated the Equal Protection Clause. Id.
at 400, 462 S.E.2d at
N.C. Gen. Stat. § 97-63 provided that: Compensation shall not be payable for
disability or death due to silicosis and/or
asbestosis unless the employee shall have been
exposed to the inhalation of dust of silica or
silicates or asbestos dust in employment for a
period of not less than two years in this
State, provided no part of such period of two
years shall have been more than 10 years prior
to the last exposure
(Emphasis added.) The Commission in Walters
had denied the
plaintiff's claim for benefits based on asbestosis because he had
not been exposed to asbestos dust for a period of two years in
North Carolina during the 10 years prior to his last exposure.
, the Court first determined that the case
implicated the Equal Protection Clause because "[t]he plaintiff
asbestosis, a specifically enumerated occupational
disease, N.C.G.S. § 97-53(24) (1991), and is therefore situated
similarly to all other persons with occupational diseases."
, 120 N.C. App. at 400, 462 S.E.2d at 234.
Once the Equal
Protection Clause came into play, the question before the Court
became "whether N.C. Gen. Stat. § 97-63, which treats employees
with asbestosis and silicosis differently from other occupational
diseases, furthers some legitimate state interest." Id.
The defendants in Walters
argued that N.C. Gen. Stat. § 97-63
prevented forum shopping and ensured that North Carolina employers
are not burdened with paying workers' compensation claims for which
they are not responsible. The Court, however, noted that
"[a]lthough the prevention of forum shopping and the protection
against claims for which the employer is not responsible are
legitimate state interests and are served by N.C. Gen. Stat. § 97-63, the statute is grossly underinclusive in that it does not
include all who are similarly situated." Walters
, 120 N.C. App. at
401, 462 S.E.2d at 234. The Court explained: "There are . . .
many other serious diseases, such as byssinosis, that develop over
time and to which N.C. Gen. Stat. § 97-63 does not apply and the
defendants have not asserted any justification for treating
asbestosis and silicosis differently from these other serious
at 401, 462 S.E.2d at 233 (internal quotation marks
omitted). The Court, therefore, concluded that "the
constitutionality of N.C. Gen. Stat. § 97-63 cannot be sustained
and this case must be remanded to the Commission." Id.
establishes the applicability of the Equal Protection
Clause to this case based on its holding that a plaintiff suffering
from asbestosis is "situated similarly to all other persons with
occupational diseases." Id.
at 400, 462 S.E.2d at 234. Further,
N.C. Gen. Stat. § 97-61.6 treats people suffering from asbestosis
and silicosis differently than people suffering from other latent
occupational diseases. See Walters
, 120 N.C. App. at 400, 462
S.E.2d at 233-34 ("The principle of equal protection of the law is
explicit in both the Fourteenth Amendment of the United States
Constitution and Article I, Section 19 of the Constitution of North
Carolina and requires that all persons similarly situated be
treated alike." (internal citations omitted)). As in Walters
question before this Court is whether the distinction between
employees suffering asbestosis or silicosis and employees suffering
from other latent occupational diseases "bears a rationalrelationship to or furthers some legitimate state interest (minimum
, 462 S.E.2d at 234.
In arguing that N.C. Gen. Stat. § 97-61.6 furthers a
legitimate state interest, defendants contend that it is a statute
of repose and thus advances the State's interest in finality. This
contention begs the real question: what is the State's rationale
for imposing a harsher statute of repose for claims involving
asbestosis than for other latent occupational diseases, including
other diseases resulting from exposure to asbestos? See Lamb v.
Wedgewood South Corp.
, 308 N.C. 419, 434-35, 302 S.E.2d 868, 877
(1983) ("The equal protection clauses do not take from the state
the power to classify persons or activities when there is a
reasonable basis for such classification and for the consequent
difference in treatment under the law." (internal quotation marks
Defendants have presented no justification for the distinction
made here between asbestosis/silicosis and other latent
occupational diseases and we can conceive of none.
As was true in
, the general goals articulated by defendants for the
statute are legitimate state interests, but N.C. Gen. Stat. § 97-
61.6 _ like the statute at issue in Walters
_ is "grossly
underinclusive in that it does not include all who are similarly
, 120 N.C. App.
at 401, 462 S.E.2d at 234.
While defendants point to asbestosis as "unique" because of
its incurable and latent nature, our Supreme Court has already
observed: A disease presents an intrinsically
different kind of claim. Diseases such as
asbestosis, silicosis, and chronic obstructive
disease normally develop over long
periods of time after multiple exposures to
offending substances which are thought to be
causative agents. . . . The first identifiable
injury occurs when the disease is diagnosed as
such, and at that time it is no longer latent.
. . . Even with diseases which might be
caused by a single harmful exposure such as,
for example, hepatitis, it is ordinarily
impossible to determine which of many possible
exposures in fact caused the disease. . . .
Both the Court and the legislature have long
been cognizant of the difference between
diseases on the one hand and other kinds of
injury on the other from the standpoint of
identifying legally relevant time periods.
Wilder v. Amatex Corp., 314 N.C. 550, 557-58, 336 S.E.2d 66, 70-71
(1985). Thus, many occupational diseases, because of their latency
or need for repeated exposure to hazardous conditions, give rise to
concerns about "finality." Indeed, paragraph 4 of N.C. Gen. Stat.
§ 97-61.6 does not even encompass other asbestos-related deaths,
such as deaths from mesothelioma, a terminal asbestos cancer caused
by exposure to asbestos, but not secondary to asbestosis. See
Robbins v. Wake County Bd. of Educ., 151 N.C. App. 518, 566 S.E.2d
139 (2002) (addressing claim based on mesothelioma arising out of
exposure to asbestos).
As this Court has since explained, in discussing the
application of the Equal Protection Clause, "[t]he statute at issue
in Walters imposed upon claimants suffering from asbestosis or
silicosis an additional burden for recovery not so imposed on
claimants with other occupational diseases. The purposes for which
the statute was enacted were equally applicable to all claimantssuffering from occupational diseases." Jones v. Weyerhaeuser Co.,
141 N.C. App. 482, 488, 539 S.E.2d 380, 383-84 (2000), appeal
dismissed and disc. review denied, 353 N.C. 525, 549 S.E.2d 858
(2001). This analysis is equally true in this case. N.C. Gen.
Stat. § 97-61.6 imposes an additional burden for recovery _ a
shorter time frame for death benefits claims _ for asbestosis or
silicosis when no rational basis exists for treating such
occupational diseases differently from other latent occupational
Because defendant has failed to suggest a justification for
treating asbestosis differently than other latent occupational
diseases, such as byssinosis, we hold that the time limitation in
the fourth paragraph of N.C. Gen. Stat. § 97-61.6 violates the
Equal Protection Clause under the rational basis test. Since the
parties agree that plaintiff's claim was within the time limitation
applicable to other occupational diseases, N.C. Gen. Stat. § 97-38,
we uphold the Commission's determination that plaintiff's claim for
death benefits was timely filed.
 Defendants R&W and Travelers next contend that the
Commission's determination that Mr. Payne's asbestosis caused or
significantly contributed to his disability and death is not
supported by the evidence. In reviewing decisions by the
Commission, "we are limited to the consideration of two questions:
(1) whether the Full Commission's findings of fact are supported by
competent evidence; and (2) whether its conclusions of law aresupported by those findings." Calloway v. Mem'l Mission Hosp.
N.C. App. 480, 484, 528 S.E.2d 397, 400 (2000). If the findings
are supported by any competent evidence, they are conclusive on
appeal, even if other evidence would support contrary findings.
Additionally, "[t]he 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. 676,
681, 509 S.E.2d 411, 414 (1998).
On this issue, defendants first contend that the evidence does
not support a finding that Mr. Payne suffered asbestosis as defined
by N.C. Gen. Stat. § 97-62
(2003) (defining "asbestosis" as
characteristic fibrotic condition of the lungs caused by the
inhalation of asbestos dust")
. In support of this argument,
defendants quote at length from Commissioner Sellers' dissent
below, which purports to set out the definition of asbestosis
developed by the American Thoracic Society and then applies that
test to the evidence presented in this case. Significantly,
defendants did not present expert witness
testimony regarding the
American Thoracic Society standard or the application of that
standard to Mr. Payne.
(See footnote 2)
Unquestionably, the standard by which
asbestosis should be diagnosed and application of that standard in
a specific case are questions requiring expert testimony. Click v.Pilot Freight Carriers, Inc.
, 300 N.C. 164, 167, 265 S.E.2d 389,
391 (1980) (requiring expert testimony "where the exact nature and
probable genesis of a particular type of injury involves
complicated medical questions far removed from the ordinary
experience and knowledge of laymen"). The argument of defendants
that Mr. Payne's condition does not meet the American Thoracic
Society standard _ as adopted by the dissenting Commissioner below
_ is unsupported by any evidence in the record. As the Supreme
Court recently reiterated by adopting Judge Steelman's dissenting
opinion, "It is not the role of the Commission to render expert
opinions." Edmonds v. Fresenius Med. Care
, 165 N.C. App. 811, 819,
600 S.E.2d 501, 506 (2004) (Steelman, J., dissenting), rev'd per
, 359 N.C. 313, 608 S.E.2d 755 (2005).
This Court has previously rejected bare reliance "on a
statement from the American Thoracic Society and other medical
literature" as support for overturning the Commission's
determination that a plaintiff had asbestosis as defined in N.C.
Gen. Stat. § 97-62. Austin v. Cont'l Gen. Tire
, 141 N.C. App. 397,
402, 540 S.E.2d 824, 828 (2000), rev'd on other grounds
, 354 N.C.
344, 553 S.E.2d 680 (2001).
Instead, after observing that the
Commission made extensive findings regarding the medical evidence
and expert testimony, this Court concluded that "[a] review of the
deposition transcripts and medical evidence presented to the
shows plenary evidence to support the Commission's
findings of fact. Accordingly, those findings are conclusive on
at 403, 540 S.E.2d at 828. Likewise, in this case, the Commission extensively reviewed
the medical evidence, including the diagnosis of Dr. Proctor that
Mr. Payne suffered from emphysema and "asbestosis and pleural
plaques related to asbestos exposure"; the opinion of Dr. Fred
Dula, a NIOSH certified B-reader, that Mr. Payne's chest films were
"entirely consistent with asbestosis"; and the opinion of Dr.
Richard Bernstein, a NIOSH certified B-reader, that Mr. Payne's x-
rays showed "[p]leural disease consistent with long standing
asbestos exposure." While the Commission noted the testimony of
Dr. Michael Alexander, also a certified B-reader, that any
pulmonary impairment was caused by emphysema, the Commission
concluded: "Given that Dr. Alexander is not a pulmonologist, did
not examine plaintiff personally and is not a diagnosing physician,
the Full Commission gives greater weight to the diagnostic
conclusions of Dr. Proctor and the x-ray and CT interpretations of
Drs. Dula and Bernstein."
While defendants argue with Dr. Proctor's diagnosis, they
present questions of credibility and weight that the Commission was
entitled to resolve in favor of plaintiff. An appellate court
reviewing a workers' compensation claim "'does not have the right
to weigh the evidence and decide the issue on the basis of its
, 349 N.C. at 681, 509 S.E.2d at 414 (quoting
Anderson v. Lincoln Constr. Co.
, 265 N.C. 431, 434, 144 S.E.2d 272,
274 (1965)). Rather, t
he Court's duty goes no further than to
determine "'whether the record contains any evidence tending to
support the finding.'" Id
. (quoting Anderson
, 265 N.C. at 434, 144S.E.2d at 274).
Because the Commission's finding that Mr. Payne
suffered from asbestosis is supported by competent evidence, it is
binding on appeal.
 Defendants next challenge the Commission's finding that
Mr. Payne's asbestosis either caused or significantly contributed
to his disability and his subsequent death.
Defendants argue that
there is no competent evidence that asbestosis caused plaintiff's
death, and any findings made by the Commission were based upon pure
speculation. To the contrary, Dr. Proctor, a specialist in
pulmonary medicine, testified in his deposition
to a reasonable
degree of medical certainty that Mr. Payne's asbestosis
significantly contributed to his death.
Further, Dr. Proctor
testified that Mr. Payne's asbestosis also severely impaired his
ability to conduct daily activities and that he would have been
unable, because of the asbestosis, to maintain employment,
"[p]articularly if there were any _ if there was any activity
involved, he would not be able to do that." While defendants point
to the fact that Mr. Payne had originally stopped working because
of his back injury, both Mr. Payne and his wife testified that he
subsequently ceased being disabled as a result of his back problem.
It was for the Full Commission to decide whether that testimony was
credible. Because there is evidence in the record that supports
the Commission's finding that Mr. Payne's asbestosis caused his
disability and significantly contributed to his death, these
assignments of error are overruled.
Finally, defendants R&W and Travelers assign error to t
Full Commission's finding that "[d]ecedent's last injurious
exposure to asbestos occurred during his employment with defendant-
employer Ross & Witmer." According to N.C. Gen. Stat. § 97-57
(2003), "the employer in whose employment the employee was last
injuriously exposed to the hazards of such disease" shall be
liable. Under the statute, with respect to asbestosis or
silicosis, the worker must have been exposed for 30 working days
within seven consecutive months in order for the exposure to be
deemed injurious. Id.
Our review is limited to determining
"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)
Defendants argue first that plaintiff "provided no scientific
evidence tending to show the presence of asbestosis [sic] in any
environment in which he worked at Ross & Witmer or, for that fact,
any other employer." This Court has squarely held that "there is
no need for such expert testimony." Vaughn v. Insulating Servs.
165 N.C. App. 469, 473, 598 S.E.2d 629, 631, disc. review denied
359 N.C. 75, 605 S.E.2d 150 (2004). See also Abernathy v. Sandoz
, 151 N.C. App. 252, 259, 565 S.E.2d 218, 223,
, 356 N.C. 432, 572 S.E.2d 421 (2002) (holding that
scientific evidence was not required regarding the extent of
exposure to asbestos when deciding where the plaintiff was last
injuriously exposed under N.C. Gen. Stat. § 97-57). In Abernathy
, this Court held that "competent evidence"
existed to support a finding of liability under N.C. Gen. Stat. §
97-57 when (1) the plaintiff testified "that he worked around
asbestos in one way or another up until the day he retired" and
that he worked directly with asbestos approximately four days a
week from 1991 to 1993, (2) another employee testified that the
plaintiff would take down pipe containing asbestos two or three
times a week, and (3) the yard where the plaintiff worked "was very
dusty with levels of asbestos present." Abernathy
, 151 N.C. App.
at 259, 565 S.E.2d at 223.
Plaintiff offered comparable evidence
in this case.
Mr. Payne testified that as part of R&W's apartment complex
project, he worked directly with and supervised people cutting and
installing asbestos wallboard and asbestos cloth. Mr. Payne was
either cutting or standing close to people cutting asbestos boards
and cloth "roughly twice a week." Don Sloop, Mr. Payne's
supervisor at the Barcelona Apartments Construction Project,
that Mr. Payne would have been exposed to asbestos
material any time he was on the job site. Mr. Payne specifically
testified that any cutting of the asbestos board would cause
asbestos dust to cover his clothes, face, and hair and he would
breathe it in. Under Abernathy
, this evidence is sufficient to
support the Commission's finding that Mr. Payne's last injurious
exposure to asbestos occurred during his employment with R&W.
For this reason
and the reasons above, we affirm the
Commission's opinion and award directing defendants R&W andTravelers to pay total disability and death benefits to plaintiff.
Judges TIMMONS-GOODSON and MCCULLOUGH concur.
That amended Form 18B stated: "Plaintiff's asbestosis has
either caused or significantly contributed to Decedent's death from
emphysema and pulmonary fibrosis. Decedent died on October 16,
2000 as testified to by Dr. Stephen D. Proctor."
Defendants' sole expert witness was Dr. Michael Alexander, a
radiologist, who acknowledged that he was not a diagnosing
physician for asbestosis and could not refute the diagnosis of a
pulmonologist such as plaintiff's expert, Dr. Stephen Proctor.
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