Appeal by defendants from Opinion and Award entered 2 March
2006 by the Industrial Commission of North Carolina. Heard in the
Court of Appeals 5 February 2007.
Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff-
appellee.
Teague, Campbell, Dennis & Gorman, L.L.P., by Thomas M. Clare
and Courtney C. Britt, for defendant-appellants.
STROUD, Judge.
Defendants appeal from the Opinion and Award of the Industrial
Commission filed on 2 March 2006, which granted workers'
compensation benefits and attorney's fees to plaintiff's estate for
permanent and total disability due to asbestosis. We affirm.
I. Factual Background
Plaintiff testified under oath as follows: He began work for
defendant-employer in 1969 as a field installer, which primarily
involved the installation of asbestos tiles in ceilings. He later
became a superintendent for approximately three to four years,
worked as a salesman, and was a part owner for the last four or
five years of his employment with Southern Flooring and Acoustical
Co., Inc. (“Southern Flooring”). Plaintiff retired from his
position with defendant-employer in 1983 and started his own
company, Gainey Acoustical.
As owner of Gainey Acoustical, plaintiff's primary duty was
soliciting contractors in order to procure orders for his company.
He retired from Gainey Acoustical in November 1995, because he
“just got tired and didn't want to work.” He was having breathing
problems at the time of his retirement, although he admitted that
no doctor ever advised him to stop working. Plaintiff alone made
the decision to retire because it was what he wanted to do. In
addition, plaintiff's interrogatory answers state that his
“retirement was in no way related to any medical problem.
Plaintiff was age 60 in 1995 and decided it was time to retire.” Plaintiff testified that at the time of the 30 November 2000
hearing he was having difficulty breathing, and that he “gave out”
when climbing steps or walking. He also testified that he
continued to play golf, could walk a mile on level ground and had
been walking for exercise for approximately ten years. Plaintiff
testified that he was first diagnosed with asbestosis “five or six
years” before the 30 November 2000 hearing.
Additional record evidence was offered by physicians who
treated plaintiff. Dr. Robert A. Rostand was the panel physician
appointed by the North Carolina Industrial Commission to examine
plaintiff. Dr. Rostand testified that plaintiff had asbestosis.
A letter written by Dr. Rostand on 3 December 1999 stated that
plaintiff had “classic asbestos related disease,” proximately
caused by “occupational exposure to asbestos while employed by
Southern Flooring and Acoustical,” and that plaintiff was “not
anticipated [to] return to gainful employment.” However, the
letter stated that Dr. Rostand was “unable to date the onset of
[plaintiff's] pulmonary problem.”
Furthermore, the record includes deposition testimony from
Drs. Frederick U. Vorwald and Sever Surdulescu. Dr. Vorwald
testified that plaintiff had asbestosis, and that plaintiff was
“physically disabled from gainful employment.” Dr. Surdulescu
testified that “it would be very difficult, if not impossible [for
plaintiff] to do any job that require[d] any amount of physical
activity” and that he recommended plaintiff use oxygen whenever he
walked. Plaintiff died on 9 May 2005.
II. Procedural History
On 8 April 1999, plaintiff filed Form 18B with the Industrial
Commission, seeking benefits for an occupational disease resulting
from exposure to asbestos during his employment with defendant
Southern Flooring, where he was employed from 1969 to April, 1983.
Defendants denied that plaintiff was entitled to benefits,
contending that he did “not have a compensable occupational
disease, and that he was not last injuriously exposed to the
hazards of any such disease while employed by defendant-employer.”
The claim was initially heard before Deputy Commissioner W. Bain
Jones on 30 November 2000. By an Opinion and Award filed on 30
March 2001 (“2001 Opinion and Award”), the deputy commissioner
concluded that “plaintiff [had] failed to prove by the greater
weight of the evidence that he [had] contracted asbestosis as a
result of his employment with defendant-employer,” and his claim
was therefore denied.
Plaintiff appealed the 2001 Opinion and Award to the Full
Commission. The Full Commission reviewed plaintiff's claim on 12
March 2003. On 2 September 2003, the Commission reversed the 2001
Opinion and Award and entered an Opinion and Award (“2003 Opinion
and Award”) which concluded that “plaintiff was last injuriously
exposed to asbestos during his employment with Southern Flooring
and that plaintiff had contracted asbestosis as a result of that
exposure.” The Commission concluded that plaintiff was entitled to
medical compensation as a result of his asbestosis and remanded the
matter to a deputy commissioner for immediate hearing and Opinionand Award regarding the disability of plaintiff as a result of his
asbestosis.
On 22 September 2004, plaintiff's claim as to disability was
heard by Deputy Commissioner George T. Glenn, II, upon remand by
the Full Commission. At the 2004 hearing no additional lay
testimony was offered, and the only new evidence presented was the
deposition testimony of plaintiff's treating physicians, Dr. Sever
Surdulescu and Dr. Frederick Vorwald. After the hearing, Deputy
Commissioner Glenn entered an Opinion and Award on 16 June 2005
(“2005 Opinion and Award”) which concluded that plaintiff had been
totally disabled since January 1995 and that he was entitled to
compensation from that date forward at the rate of $481.24 per
week. On 28 June 2005, defendants filed notice of appeal to the
Full Commission from the 2005 Opinion and Award.
The Full Commission reviewed plaintiff's claim on 8 November
2005. In its Opinion and Award filed 2 March 2006 (“2006 Opinion
and Award”), the Commission found that (1) plaintiff had received
medical treatment for asbestosis-related problems; (2) plaintiff
suffered from breathing problems as a result of asbestosis; (3)
plaintiff had suffered from asbestosis as a result of his
employment with defendant-employer and the disease had rendered him
unable to perform gainful employment since 3 December 1999; (4)
plaintiff's breathing problems severely impaired his daily
activities; (5) as a result of asbestosis, it was difficult, if not
impossible, for plaintiff to do any job that required any amount of
physical activity; and (6) plaintiff stopped working in 1995 as aresult of his disease and plaintiff's asbestos-related condition
continued to deteriorate until his death. The Commission concluded
that as a result of his asbestosis, plaintiff was entitled to
permanent and total disability compensation at the weekly rate of
$481.24 from 3 December 1999, the date of the panel examination by
Dr. Rostand, through the date of his death, 9 May 2005. Defendants
were ordered to pay the compensation awarded to plaintiff's estate
in a lump sum, along with attorney's fees in the amount of 25% of
the compensation awarded. Defendants filed notice of appeal to
this Court from the 2006 Opinion and Award. On appeal, defendants
assign error to two findings of fact in the 2006 Opinion and Award
(See footnote 1)
and to the conclusion of law and the award of the 2006 Opinion and
Award.
III. Findings of Fact
Defendants assign error to the following findings of the
Commission: (1) plaintiff had suffered from asbestosis as a result
of his employment with defendant-employer and the disease had
rendered him unable to perform gainful employment since 3 December
1999; and (2) plaintiff stopped working in 1995 as a result of his
disease and plaintiff's asbestos-related condition continued to
deteriorate until his death. We determine that the first contested
finding of fact is supported by competent evidence, and istherefore binding on appeal, but the second contested finding is
not supported by competent evidence, and therefore not binding on
appeal.
Except for jurisdictional questions, failure to assign error
to the Commission's findings of fact renders them binding on
appellate review.
Cornell v. Western & S. Life Ins. Co., 162 N.C.
App. 106, 110-11, 590 S.E.2d 294, 297 (2004). Likewise, the
Commission's findings of fact are binding on appeal if they are
supported by competent evidence, even if there is evidence to
support a contrary finding.
Morrison v. Burlington Industries, 304
N.C. 1, 6, 282 S.E.2d 458, 463 (1981). Put another way, the
Commission's findings of fact may be set aside on appeal only “when
there is a complete lack of competent evidence to support them.”
Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914
(2000) (citation omitted). Further, on appeal of an award of the
Industrial Commission, “the 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. 679,
681, 509 S.E.2d 411, 414 (1998).
[1] Defendants are correct that the evidence does not support
a finding that plaintiff stopped working in 1995 because of his
medical condition, or that plaintiff's condition continued to
worsen until his death. There is evidence of plaintiff's declining
health leading up to 1995, but neither plaintiff's testimony nor
his answers to interrogatories support a finding that he stoppedworking for this reason. In fact, in answer to an interrogatory
regarding this issue, plaintiff stated unequivocally that his
“retirement was in no way related to any medical problem.
Plaintiff was age 60 in 1995 and decided it was time to retire.”
Further, there was no evidence before the Commission as to
plaintiff's condition after Dr. Surdulescu's last note in evidence
dated 12 October 2004 until plaintiff's death on 9 May 2005.
[2] However, there is competent evidence to support the other
challenged finding of fact. The purpose of Dr. Rostand's
examination of plaintiff was to determine if he suffered from
asbestosis and to determine the extent of his disease. Defendants
quibble in their brief over the wording of portions of Dr.
Rostand's report, but considering his report and testimony in its
entirety, Dr. Rostand's evidence does support the Commission's
finding of fact that plaintiff suffered from asbestosis as a result
of his employment with defendant-employer. The possibility that
some of Dr. Rostand's statements could support a contrary finding
is of no moment, because the Commission's findings based on its
evaluation of Dr. Rostand's testimony and report are entitled to
deference in our review of the findings of fact.
In addition, Dr. Vorwald began treating plaintiff in 1996,
prior to Dr. Rostand's panel examination of plaintiff, and the
history of plaintiff's actual treatment with Dr. Vorwald also
supports the findings of Dr. Rostand's examination. Likewise,
although plaintiff did not begin his treatment with Dr. Surdulescu
until 2003, the history of this treatment also supports Dr.Rostand's 1999 findings, since plaintiff's medical course did in
fact continue after 1999 as Dr. Rostand had predicted that it would
based on his diagnosis. For example, Dr. Rostand concluded in 1999
that plaintiff would in the future “require continued medical
surveillance for his asbestos related pulmonary condition,” a
conclusion affirmed by the testimony and medical records of Drs.
Vorwald and Surdulescu, which both demonstrate that plaintiff's
condition continued to worsen from 1999 until the date of their
last documented contact with him, 12 October 2004. Defendant
presented no evidence at all to contradict any of plaintiff's
evidence on any issue, including Dr. Rostand's opinion as to
plaintiff's disability.
The foregoing is competent evidence to support the
Commission's finding that plaintiff had suffered from asbestosis as
a result of his employment with defendant-employer and the disease
had rendered him unable to perform gainful employment since 3
December 1999. Additionally, the Commission's other findings are
binding on this Court, because they are not jurisdictional and
defendant did not assign error to them.
IV. Conclusion of Law
[3] The Commission found as fact that plaintiff was
“permanently and totally disabled.” However, “whether an employee
is disabled [for purposes of workers' compensation] is a question
of law.”
Heffner v. Cone Mills Corp., 83 N.C. App. 84, 87, 349
S.E.2d 70, 73 (1986). The Commission's legal conclusions are
reviewable by the appellate courts
de novo.
Grantham v. R. G.Barry Corp., 127 N.C. App. 529, 534, 491 S.E.2d 678, 681 (1997),
disc. review denied, 347 N.C. 671, 500 S.E.2d 86 (1998). But,
“where there are sufficient findings of fact based on competent
evidence to support the [tribunal's] conclusions of law, the
[decision] will not be disturbed because of other erroneous
findings which do not affect the conclusions.”
Black Horse Run
Ppty. Owners Assoc. v. Kaleel, 88 N.C. App. 83, 86, 362 S.E.2d 619,
622 (1987),
cert. denied, 321 N.C. 742, 366 S.E.2d 856 (1988).
In order to support a conclusion that a claimant is totally
and permanently disabled by exposure to asbestos, and entitled to
benefits under N.C. Gen. Stat. § 97-29 (2005)
(See footnote 2)
, the Commission must
find that the claimant is totally unable,
Frazier v. McDonald's,
149 N.C. App. 745, 752, 562 S.E.2d 295, 300 (2002),
cert. denied,
356 N.C. 670, 577 S.E.2d 117 (2003), “as a result of the injury
arising out of and in the course of his employment,” 149 N.C. App.
at 752, 562 S.E.2d at 300 (citation omitted), “to earn, in the same
or any other employment, the wages which the employee was receiving
at the time of his last injurious exposure to asbestosis or
silicosis,” N.C. Gen. Stat. § 97-54 (2005).
The Commission's findings that (1) plaintiff had received
medical treatment for asbestosis-related problems; (2) plaintiff
suffered from breathing problems as a result of asbestosis; (3)
plaintiff had suffered from asbestosis as a result of his
employment with defendant-employer and the disease had rendered himunable to perform gainful employment since 3 December 1999; (4)
plaintiff's breathing problems severely impaired his daily
activities; and (5) as a result of asbestosis, it was difficult, if
not impossible, for plaintiff to do any job that required any
amount of physical activity were sufficient to support the
Commission's conclusion that plaintiff was totally and permanently
disabled, and entitled to benefits under N.C. Gen. Stat. § 97-29
starting 3 December 1999. The findings that plaintiff stopped
working in 1995 as a result of his disease, and that plaintiff's
asbestos-related condition continued to deteriorate until his
death, though erroneous, did not affect the Commission's
conclusions of law, and are therefore not reversible error.
Accordingly, we affirm the 02 March 2006 Opinion and Award of the
Industrial Commission.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Footnote: 1