The Commission has exclusive original
jurisdiction over workers' compensation cases
and has the duty to hear evidence and file its
award, together with a statement of the
findings of fact, rulings of law, and other
matters pertinent to the questions at issue.
Appellate review of an award from the
Industrial Commission is generally limited to
two issues: (i) whether the findings of fact
are supported by competent evidence, and (ii)
whether the conclusions of law are justified
by the findings of fact.
Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555
(2006) (citations and quotations omitted). The Commission's
findings of fact are conclusive on appeal if supported by competent
evidence, notwithstanding evidence that might support a contrary
finding. Further, the Commission is the sole judge regarding the
credibility of witnesses and the strength of evidence. Hobbs v.
Clean Control Corp
., 154 N.C. App. 433, 435, 571 S.E.2d 860, 862
(2002) (citations omitted). The Commission's findings of fact may
only be set aside when 'there is a complete lack of competent
evidence to support them.' Evans v. Wilora Lake
/Hilltopper Holding Co., 180 N.C. App. 337, 339, 637S.E.2d 194, 195 (2006) (quoting Click v. Freight Carriers
, 300 N.C.
164, 166, 265 S.E.2d 389, 390 (1980)). However, the Commission's
conclusions of law are reviewable de novo
by this Court. Hawley
v. Wayne Dale Constr
., 146 N.C. App. 423, 427, 552 S.E.2d 269, 272
(2001) (citations omitted).
 Defendant argues first that the Full Commission's Opinion
and Award must be reversed because the Industrial Commission failed
to comply with the order of remand from the North Carolina Supreme
Court. Defendant asserts that the Full Commission's remand to a
Deputy Commissioner for a hearing on the issue of plaintiff's
disability violated the remand order from the North Carolina
Supreme Court. We disagree.
Defendant's assertion, that the mandate of the North Carolina
Supreme Court prohibited the Full Commission from conducting an
evidentiary hearing on remand, is based on the following language
from Crump v. Independence Nissan
Following an appeal to this Court if the case
is remanded to the Commission, the full
Commission must strictly follow this Court's
mandate without variation or departure.
Ordinarily upon remand the full Commission can
comply with this Court's mandate without the
need of an additional hearing, but upon the
rare occasion that this Court requires an
additional hearing upon remand the full
Commission must conduct the hearing without
further remand to a deputy commissioner.
112 N.C. App. 587, 590, 436 S.E.2d 589, 592 (1993). We conclude
is not, as asserted by defendant, a mandatory directive
that no further evidence or hearing is to be conducted unless the
appellate court reviewing the matter on rare occasion orders thesame. The above quoted language does not address the authority of
the Full Commission to conduct an evidentiary hearing upon remand.
Rather, it specifies that when this Court orders a hearing, such
hearing shall be conducted by the Full Commission rather than being
remanded to a Deputy Commissioner. Further, this language is
; the issue raised by the appellant in Crump
was whether the
Full Commission erred by adopting the Deputy Commissioner's Opinion
and Award as its own. Id.
at 588-89, 436 S.E.2d at 592-93. The
appeal in Crump
did not present any issue of the proper procedure
to be followed by the Industrial Commission upon remand from an
In the instant case, the North Carolina Supreme Court simply
ordered the Commission to conduct proceedings not inconsistent
with this opinion and Judge Greene's dissent below. Austin II
345, 553 S.E.2d at 680. As the sole basis for the dissent was that
plaintiff was required to seek workers' compensation benefits under
N.C. Gen. Stat. § 97-64 rather than N.C. Gen. Stat. § 97-61.5, the
Commission's remand for determination of plaintiff's entitlement to
benefits under § 97-64 was consistent with the Court's opinion and
the dissent. This assignment of error is overruled.
 Defendant also argues that as a matter of law the Full
Commission was barred from taking new evidence, on the grounds that
the issue of plaintiff's disability was an issue in the first
hearing. The issue at the first hearing was plaintiff's
entitlement to benefits under N.C. Gen. Stat. § 97-61.1 through
61.7. Under these statutes, a diagnosis of asbestosis, forpurposes of determining eligibility to receive benefits, is the
equivalent of a finding of actual disability. Roberts v.
Southeastern Magnesia and Asbestos Co
., 61 N.C. App. 706, 710, 301
S.E.2d 742, 744 (1983). Accordingly, the issue of plaintiff's
disability was not a contested issue at the first hearing, and no
evidence was presented on the subject. However, on remand the
Commission was directed to determine whether plaintiff was entitled
to benefits under N.C. Gen. Stat. § 97-64, which provides that in
case of disablement or death from silicosis and/or asbestosis,
compensation shall be payable in accordance with the provisions of
the North Carolina Workers' Compensation Act. N.C. Gen. Stat. §
97-64 (2005). Thus, plaintiff's disability was clearly at issue on
remand. Moreover, recent opinions of this Court addressing this
situation clearly contemplate an evidentiary hearing on remand.
, Abernathy v. Sandoz Chems./Clariant Corp.,
151 N.C. App.
252, 257, 565 S.E.2d 218, 221 (2002) ([T]hough plaintiff does not
qualify for compensation pursuant to G.S. § 97-61.5, he is
nevertheless entitled to pursue a claim for compensation pursuant
to G.S. § 97-64. That statute provides . . . 'in case of
disablement . . . from . . . asbestosis, compensation shall be
payable in accordance with the provisions of the North Carolina
Workers' Compensation Act.' . . . If, on remand, plaintiff
establishes his disablement from asbestosis
, and his entitlement to
compensation pursuant to G.S. § 97-64, the Commission must
determine his average weekly wage.) (Emphasis added). Moreover,
even if the Commission had
addressed plaintiff's disability at thefirst hearing, defendant cites no authority for the proposition
that the Full Commission would have been barred from
reconsideration of the issue. This assignment of error is
 Defendant argues next that the Commission erred by taking
new evidence following remand because the evidence regarding
plaintiff's disability was available at the time of the first
hearing . . . . Defendant contends that new evidence would have
to constitute newly discovered evidence under [N.C. Gen. Stat. §
1A-1,] Rule 60(b)(2). We disagree.
First, defendant cites no pertinent authority for the
propetition that the Commission's authority to take additional
evidence regarding the issue of plaintiff's disability is limited
by the strictures of Rule 60. Defendant also contends that
plaintiff's disability was at issue in the first hearing,
requiring plaintiff to present his evidence of disability at that
time. In fact, the issue of disability was not litigated at the
first hearing because disability evidence is not required under
N.C. Gen. Stat. § 97-61.5. N.C. Gen. Stat. § 97-61.5 (2005).
Moreover, in Austin II
, the North Carolina Supreme Court held for
the first time that this statute was not available to claimants who
were retired at the time the claim was filed, and that plaintiff
would have to file for benefits under a different statute, N.C.
Gen. Stat. § 97-64. Austin II
at 345, 553 S.E.2d 680 (adopting the
reasoning stated in Austin I
at 416, 553 S.E.2d at 836 (Greene, J.,
dissenting)). Defendant cites no authority supporting its position that
plaintiff's failure to present disability evidence at the first
hearing bars him from doing so now. Indeed, Hall v. Chevrolet Co.
cited by defendant, holds to the contrary:
We find convincing the following reasoning of
the Connecticut court: '. . . A party to a
[workers'] compensation case is not entitled
to try his case piecemeal. . . . On the other
hand, mere inadvertence on his part, mere
negligence, without intentional withholding of
evidence, particularly where there is no more
than technical prejudice to the adverse party,
should not necessarily debar him of his
rights, and despite these circumstances a
commissioner in the exercise of his discretion
might be justified in opening an award.
Hall v. Chevrolet Co.
, 263 N.C. at 576-77, 139 S.E.2d at 862-63
(1965) (quoting Kearns v. City of Torrington
, 119 Conn. 522, 529-
30, 177 Atl. 725, 728 (1935)).
Nor does defendant cite any pertinent authority holding that
the Commission's authority to take new evidence is limited to those
issues on which plaintiff presented evidence. In Trivette v.
, 141 N.C. App. 151, 541 S.E.2d 523 (2000),
the plaintiff appealed from an Opinion and Award, and this Court
remanded to the Commission for findings on permanent partial
impairment. Trivette v. Mid-South Mgmt., Inc.
, 154 N.C. App. 140,
141-42, 571 S.E.2d 692, 694 (2002) (citing 141 N.C. App. 151, 541
S.E.2d 523). On remand, the Commission addressed this issue, and
also awarded compensation for temporary total disability. Id.
142, 571 S.E.2d at 694. This Court held that in so doing the
Commission did not exceed its authority.
at 143, 571 S.E.2d at
695. In Joyner v. Rocky Mount Mills
, the Commission dismissed aplaintiff's claim for future medical expenses because it determined
that the claim had not been preserved according to the
Commission's rules. 92 N.C. App. 478, 481, 374 S.E.2d 610, 612
(1988). The sole question before this Court was whether the
Commission had erred by dismissing that claim. Id.
at 480, 374
S.E.2d at 612. We reversed because
Plaintiff's claim . . . embodied a claim for
future medical expenses. When the matter was
'appealed' to the full Commission by
defendants it was the duty and responsibility
of the full Commission to decide all of the
matters in controversy between the parties. .
. . The Commission may not use its own rules
to deprive a plaintiff of the right to have
his case fully determined. Thus, the
Commission's statement . . . that 'the issue
of payment of future medical expenses is not
properly preserved' will not support the order
[dismissing plaintiff's motion].
at 482, 571 S.E.2d at 613.
Thus, even assuming, arguendo
disability was raised by plaintiff's initial claim, the fact that
it wasn't litigated at the first hearing did not preclude
plaintiff's presenting evidence on the issue on remand. This
assignment of error is overruled.
 Defendant argues next that the Full Commission erred by
finding that the findings of fact from the first hearing were res
in the second one. Assuming, arguendo
, that the Full
Commission erred in this regard, we conclude that defendant has
failed to show prejudice.
In its Opinion and Award the Full Commission stated that:
The Findings of Fact of the Full Commission
Opinion and Award filed December 18, 1998, as
approved by the North Carolina Court of
Appeals and Supreme Court, are res judicata
and if not specifically addressed herein, are
incorporated by reference.
Defendant has failed to identify any specific findings from the
first hearing that it contends: (1) were unsupported by the
evidence; or (2) were contradicted by evidence taken at the second
hearing. Nor has defendant asserted any way in which the Full
Commission's incorporation of its findings from the first hearing
hindered defendant's ability to defend this action. This
assignment of error is overruled.
 Defendant argues next that the Full Commission erred by
awarding plaintiff benefits, on the grounds that plaintiff retired
voluntarily and not due to pulmonary problems. We disagree.
Defendant cites no authority for the proposition that a
claimant cannot recover for an occupational disease if he has
voluntarily retired prior to filing a claim, and long-established
precedent to the contrary clearly establishes that a claimant is
not barred from receiving workers' compensation benefits for an
occupational disease solely because he or she was retired.
, Heffner v. Cone Mills Corp.
, 83 N.C. App. 84, 88, 349 S.E.2d
70, 74 (1986) ([T]he Commission may not deny disability benefits
because the claimant retired where there is evidence of diminished
earning capacity caused by an occupational disease.). In Heffner
the Commission denied the plaintiff's claim for disability
compensation, and in doing so apparently placed great reliance on
its conclusion . . . that the plaintiff's lack of earnings was due
to his desire to retire and the closing of the plant where he wasworking. In doing so, we believe the Commission acted under a
misapprehension of the law. Id
rule is consistent with G.S. §
97-29, the statute through which claimants are
awarded benefits for total disability, in that
the section provides that compensation is to
be paid 'during the lifetime of the injured
employee,' and payments are not terminated
when a claimant reaches an age at which he or
she would have retired if able to work.
Stroud v. Caswell Center
, 124 N.C. App. 653, 656, 478 S.E.2d 234,
This assignment of error is overruled.
We have considered defendant's remaining arguments, and
conclude that they are without merit.
For the reasons discussed above, we conclude that the
Commission did not err and that its Opinion and Award should be
Judges McGEE and JACKSON concur.
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