Appeal by defendants from opinion and award entered 12 July
2005 by the North Carolina Industrial Commission. Heard in the
Court of Appeals 17 May 2006.
The Sumwalt Law Firm, by Vernon Sumwalt and Mark T. Sumwalt,
Cranfill, Sumner & Hartzog, L.L.P., by Meredith T. Black, for
defendant-appellee Universal Underwriters Insurance Company.
Morris York Williams Surles & Barringer, LLP, by Michelle S.
Langdon and Keith B. Nichols, for defendants-appellants Jerry
Rhyne's Collision Repair and Southern Guaranty.
Universal Underwriters Insurance Company (Universal) provided
workers' compensation coverage for Jerry Rhyne's Collision Repair
(employer) from 1 September 1999 through 1 September 2002.
Southern Guaranty provided workers' compensation coverage for
employer from 1 September 2002 through May 2004. Southern Guarantyand employer (collectively appellants) appeal from an opinion and
award of the North Carolina Industrial Commission (the Commission)
filed 12 July 2005.
John Dodrill (plaintiff) began working as an automobile body
repairman in 1983. He began working for employer in 1995. Under
employer's production-based system, plaintiff's wages depended on
the number of repairs plaintiff completed. Plaintiff normally
worked more than twelve hours per day, seven days per week.
Plaintiff used both his arms extensively and repetitively
while repairing vehicles. Plaintiff worked from a lying or seated
position underneath an automobile, and he routinely reached above
his shoulders to perform repairs. Plaintiff also handled powerful
air chisels, grinders, and other tools that required complete
reliance on his arms and shoulders to operate.
Plaintiff began experiencing pain in his arms in 2001 while
working with employer. Plaintiff saw Dr. Russell Garland (Dr.
Garland), an orthopedic surgeon, on 16 January 2002. Dr. Garland
diagnosed impingement syndrome, or bursitis, in plaintiff's right
shoulder. He noted plaintiff had been symptomatic of this
condition for "a long period of time." When plaintiff saw Dr.
Garland again on 1 February 2002, Dr. Garland recommended that
plaintiff undergo surgery to repair plaintiff's right shoulder and
recommended that plaintiff discontinue his work with employer.
However, plaintiff declined surgery and continued to work because
he could not afford to be out of work.
Plaintiff returned to Dr. Garland on 19 July 2002 andcomplained that his right shoulder pain had worsened and that he
now felt pain in his left elbow. Dr. Garland diagnosed plaintiff
with lateral epicondylitis in the left elbow, commonly known as
"tennis elbow." Dr. Garland noted that plaintiff's job duties
could "absolutely" cause lateral epicondylitis.
Dr. Garland saw plaintiff on 10 October 2002 and noted that
plaintiff continued to complain of pain in his right shoulder and
left elbow. Dr. Garland again recommended surgery on plaintiff's
right shoulder, but again plaintiff did not have the surgery
because he could not afford to be out of work. Dr. Garland
continued plaintiff on his medications. When plaintiff saw Dr.
Garland on 5 March 2003, plaintiff complained of pain in his left
shoulder for the first time. Dr. Garland then diagnosed medial
epicondylitis in plaintiff's left elbow. Explaining the
distinction between medial epicondylitis and the previously-
diagnosed lateral epicondylitis in plaintiff's left elbow, Dr.
Garland testified that plaintiff "was doing such strenuous work
that [plaintiff] . . . had inflamed the flexor tendons as well."
Thus, Dr. Garland stated that plaintiff's left elbow had worsened
since he diagnosed tennis elbow in July 2002.
Plaintiff's condition deteriorated to the point that he had
developed medial epicondylitis in both elbows and impingement
syndrome, or bursitis, in both shoulders by 3 April 2003. Dr.
Garland performed surgery on plaintiff's right shoulder and right
elbow on 6 May 2003. Despite plaintiff's wishes that Dr. Garland
perform surgery on plaintiff's left shoulder and elbow the sameday, Dr. Garland did not do so because of the limitation surgeries
on both arms would have caused plaintiff. Plaintiff was out of
work from 6 May 2003 until 1 July 2003. Plaintiff filed a Form 18
on 21 May 2003 seeking workers' compensation.
After a hearing, a deputy commissioner entered an opinion and
award on 19 May 2004, concluding that plaintiff suffered a
compensable occupational disease while working for employer. The
deputy commissioner also found that plaintiff "was last injuriously
exposed to the hazards of his employment with employer after 1
September 2002." Plaintiff was awarded total disability
compensation at the rate of $674.00 per week from 6 May 2003
through 1 July 2003, as well as all reasonably necessary medical
compensation related to plaintiff's compensable bilateral upper
extremity conditions. The deputy commissioner concluded that
Southern Guaranty was the carrier on the risk for plaintiff's
claim, since plaintiff was last injuriously exposed to the hazards
of his employment with employer after 1 September 2002.
Appellants appealed to the full Commission. The Commission
affirmed the deputy commissioner's opinion and award, finding that
plaintiff "was last injuriously exposed to the hazards of his
employment with employer after 1 September 2002." The Commission
concluded, under N.C. Gen. Stat. § 97-57, that Southern Guaranty
was the carrier of risk for the entire claim. Appellants appeal.
Appellants do not contest that plaintiff suffered a
compensable occupational disease. The only issue before our Court
is which insurance carrier was on the risk during the timeplaintiff was last injuriously exposed to the occupational disease.
Appellants argue the Commission erred in determining that Southern
Guaranty was the carrier on the risk for plaintiff's claim.
Appellants contend that Universal, which provided coverage for
employer from 1 September 1999 through 1 September 2002, was the
carrier on the risk during the entirety of plaintiff's occupational
disease. Therefore, appellants argue, Universal is liable for
compensating plaintiff. Appellants assign error to one finding of
fact and one conclusion of law from the Commission's opinion and
Appellate review of an opinion and award by the Commission is
limited to two inquiries: (1) whether the Commission's findings of
fact are supported by any competent evidence in the record; and (2)
whether the conclusions of law are justified by the findings of
fact. Counts v. Black & Decker Corp., 121 N.C. App. 387, 389, 465
S.E.2d 343, 345 (internal citation omitted), disc. review denied,
343 N.C. 305, 471 S.E.2d 68 (1996). If supported by competent
evidence, the Commission's findings are conclusive even if the
evidence might also support a contrary finding. Jones v. Candler
Mobile Village, 118 N.C. App. 719, 721, 457 S.E.2d 315, 317 (1995).
The Commission's conclusions of law are reviewable de novo.
Whitfield v. Laboratory Corp. Of Am., 158 N.C. App. 341, 348, 581
S.E.2d 778, 783 (2003); N.C. Gen. Stat. § 97-82 (2005).
Appellants first argue there is no competent evidence to
support the Commission's finding of fact number nineteen. Findingof fact number nineteen provides: "
Plaintiff's conditions developed
over time as he performed the same job duties for employer.
Therefore, plaintiff was last injuriously exposed to the hazards of
his employment while working for employer after September 1,
2002, when Southern Guaranty was on the risk.
" Although the
Commission designated it as a finding of fact, the second sentence
in finding of fact number nineteen "is in reality a conclusion of
law in that it applies principles of law, rather than a
determination of facts from the appellant's evidence[.]" State ex
rel. Utilities Comm. v. Mackie
, 79 N.C. App. 19, 30, 338 S.E.2d
888, 896 (1986). Therefore, we discuss the Commission's statement
of plaintiff's "last injurious exposure" as a conclusion of law in
section II of this opinion.
Appellants concede that plaintiff's job duties remained the
same throughout his tenure with employer from 1995 through 2004.
Our review of the record shows competent evidence that plaintiff's
medical condition developed over time as he performed his work for
employer. This evidence supports the Commission's finding that
plaintiff's medical condition continued to develop after 1
Most notably, Dr. Garland's medical testimony shows that
plaintiff's condition worsened after 1 September 2002, when
Southern Guaranty was on the risk. Dr. Garland testified that he
diagnosed plaintiff with medial epicondylitis in plaintiff's left
elbow on 5 March 2003. Dr. Garland responded affirmatively when
asked if plaintiff's left elbow had worsened since July 2002, whenDr. Garland diagnosed lateral epicondylitis, or "tennis elbow," in
plaintiff's left elbow. Dr. Garland noted plaintiff "was doing
such strenuous work that [plaintiff] . . . had inflamed the flexor
tendons as well." According to Dr. Garland, this was also the
first time plaintiff had complained of pain in his left shoulder.
Furthermore, Dr. Garland testified that on 3 April 2003,
plaintiff complained for the first time of pain in his right elbow.
At that time, Dr. Garland diagnosed medial epicondylitis in
plaintiff's right elbow. Dr. Garland performed surgery on
plaintiff's right arm on 6 May 2003. Dr. Garland opined that
plaintiff's work activities caused his conditions, despite evidence
of plaintiff's prior jobs and the presence of a previous rotator
Appellants point to plaintiff's statement that plaintiff
suffered from conditions in both arms prior to his initial visit
with Dr. Garland in January 2002. Thus, appellants argue, there is
no competent evidence to show that plaintiff's medical condition
changed after 1 September 2002. Although plaintiff's statement may
support a finding contrary to the Commission's finding of fact
number nineteen, Dr. Garland's testimony regarding the
deterioration in plaintiff's condition is competent evidence to
support the Commission's finding. Under Jones
, we need only find
competent evidence to support the Commission's finding, despite
evidence that might support a contrary finding. Jones
, 118 N.C.
App. at 721, 457 S.E.2d at 317. Accordingly, we affirm the finding
that plaintiff's condition developed over time as he performed thesame job duties for employer.
We next address the Commission's conclusion of law that
"Southern Guaranty is the carrier on the risk for [plaintiff's]
claim, since plaintiff was last injuriously exposed to the hazards
of his employment with employer after September 1, 2002."
Appellants argue this conclusion is incorrect as a matter of law
and is not supported by the Commission's findings. In reviewing
the "last injurious exposure" rule from N.C. Gen. Stat. § 97-57, we
uphold the Commission's conclusion as a matter of law, and find it
supported by the Commission's findings of fact.
N.C. Gen. Stat. § 97-57 (2005) provides:
[i]n 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
This is true "even though the disease has been present and has
progressed over a long period of time." Stewart v. Duncan
N.C. 640, 645, 80 S.E.2d 764, 768 (1954). As to the risk assumed
by insurance carriers, "the law makes no provision for a
partnership in responsibility[.] . . . It takes the breakdown
practically where it occurs _- with the last injurious exposure."
Haynes v. Feldspar Producing Co.
, 222 N.C. 163, 170, 22 S.E.2d 275,
279 (1942); see also Hartsell v. Thermoid Co.
, 249 N.C. 527, 531-
32, 107 S.E.2d 115, 118 (1959) (holding a second carrier fully
liable even though it was on the risk for only the last five daysof the thirty-day period applicable to asbestosis claims).
Our Supreme Court has interpreted the term "last injuriously
exposed" to mean "an exposure which proximately augmented the
disease to any extent, however slight." Rutledge v. Tultex Corp.
308 N.C. 85, 89, 301 S.E.2d 359, 362 (1983) (internal quotation
that the plaintiff was last injuriously exposed
to the hazards of her occupational disease at the defendant's
mill, even though the plaintiff had worked at other mills and there
was evidence that the plaintiff's habitual smoking could have
contributed heavily to her chronic obstructive lung disease).
"hazard" of a disease to which an employee is "last injuriously
exposed" is defined as "[a] condition peculiar to the workplace
which accelerates the progress of an occupational disease to such
an extent that the disease finally causes the worker's incapacity
to work[.]" Caulder v. Waverly Mills
, 314 N.C. 70, 75, 331 S.E.2d
646, 649 (1985).
Applying those definitions to the present case, the Commission
concluded plaintiff's last injurious exposure occurred after 1
September 2002, when Southern Guaranty began covering plaintiff's
employer. Appellants assign error to this conclusion as a matter
of law and argue that plaintiff was last injuriously exposed to the
hazards of his disease prior to 1 September 2002. Appellants
contend that plaintiff's upper extremity conditions arose entirely
before Southern Guaranty began providing coverage and had reached
a "point of saturation" well before 1 September 2002.
In Jones v. Beaunit Corp
., 72 N.C. App. 351, 354, 324 S.E.2d624, 626 (1985), our Court rejected a "point of saturation"
argument similar to appellants' argument.
while the prior insurance carrier in Jones
would have been liable
if the plaintiff had reached the point of saturation during its
coverage period, an analysis of the evidence indicated otherwise.
. In Jones
, the plaintiff worked for his employer until he could
work no longer due to his breathing problem, and he was exposed to
the hazards of his disease, the dangerous dust and fumes from his
workplace, after defendant carrier began providing coverage for the
. Similarly, in the present case, a review of the
evidence shows that plaintiff's condition did not reach the "point
of saturation" during Universal's coverage, but rather continued to
worsen after Southern Guaranty came on the risk in September 2002.
Like the plaintiff in Jones
"worked at the same company
under the same deleterious conditions for the duration of his
, 72 N.C. App. at 354, 324 S.E.2d at 626.
As discussed in Section I of this opinion, appellants do not
contest that plaintiff's job duties remained the same from 1999 to
2004. Furthermore, appellants do not contest the Commission's
finding that plaintiff's job duties caused or significantly
contributed to plaintiff's occupational disease. Following the
logic from Jones
, since plaintiff continued to work
under the hazards of his occupational disease after 1 September
2002, he remained capable of further injury. Jones
, 72 N.C. App.
at 354, 324 S.E.2d at 626; see also Haynes
, 222 N.C. at 170, 22
S.E.2d at 279 (affirming an award to the plaintiff after exposureto silica particles augmented his already-contracted silicosis,
stating: "But although his breath was short and his heart beat
faster . . . we must assume, because he still lived and breathed,
he was capable of further injury.").
In the opinion of Dr. Garland, plaintiff's job duties caused
or significantly contributed to plaintiff's condition in both arms.
When asked if plaintiff was at an increased risk for developing the
condition, Dr. Garland stated: "Everything I can think of and know
of that causes these injuries, he engaged in at work." As
mentioned in Section I, Dr. Garland testified that plaintiff's
condition continued to worsen after 1 September 2002. Dr. Garland
noted on 5 March 2003 that plaintiff complained of pain in his left
shoulder for the first time, and plaintiff's left elbow
deteriorated to the point he was diagnosed with medial
epicondylitis. Dr. Garland diagnosed plaintiff with medial
epicondylitis in the right elbow for the first time on 3 April
2003. Dr. Garland performed surgery on plaintiff's right elbow and
right shoulder on 6 May 2003, effectively causing plaintiff to be
totally incapacitated until 1 July 2003.
This evidence supports the Commission's conclusion that
plaintiff suffered an exposure to a hazard after September 2002,
the uncontested date that Southern Guaranty began coverage. The
Commission was therefore correct in concluding that Southern
Guaranty was on the risk when plaintiff was last injuriously
exposed and in ordering employer and Southern Guaranty to pay for
plaintiff's temporary total disability and reasonably necessarymedical compensation. Moreover, we find this conclusion of law is
supported by the Commission's finding of fact number nineteen,
discussed above, as well as findings of fact numbers seventeen and
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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