Appeal by Plaintiff from order entered 16 November 2006 by the
North Carolina Industrial Commission. Heard in the Court of
Appeals 19 September 2007.
Wallace and Graham, P.A., by Edward L. Pauley, for Plaintiff-
Hedrick Eatman Gardner & Kincheloe, L.L.P., by Matthew D.
Glidewell and Jeffrey A. Kadis, for Defendants-Appellees.
James Robert Earls (Plaintiff) filed a Form 18B dated 14
February 2000 claiming benefits for the occupational disease of
asbestosis and/or asbestos-related pleural disease. Starr Davis
Company, Inc. (Defendant-Employer) denied liability, and Deputy
Commissioner Lorrie L. Dollar heard Plaintiff's claim on 17 July
2001. Deputy Commissioner Dollar entered an opinion and award on
30 April 2003 denying Plaintiff's claim.
Plaintiff appealed to the North Carolina Industrial Commission(the Commission), and the Commission entered the following order on
19 November 2003:
The undersigned have reviewed the prior
Opinion and Award based upon the record of the
proceedings before Deputy Commissioner Dollar.
The appealing party has shown good grounds to
receive further evidence. It is therefore
ORDERED that this case is hereby REMANDED to
the Chief Deputy Commissioner for conduct of
an evidentiary hearing for the purpose of
obtaining additional evidence on the issues of
compensability and last injurious exposure.
However, on remand, the parties advised Deputy Commissioner George
T. Glenn II that "there would not be any additional evidence
offered in this matter and that it should be decided on the
evidence already contained in the record." Accordingly, Deputy
Commissioner Glenn referred the case back to the Commission. The
Commission entered an order on 16 November 2006 affirming with
modifications Deputy Commissioner Dollar's opinion and award.
Plaintiff first argues the Commission erred by failing to
follow applicable statutory procedures. Specifically, Plaintiff
argues the Commission violated N.C. Gen. Stat. § 97-84 and Workers'
Compensation Rule 611 by denying Plaintiff a hearing before a
deputy commissioner and by eliminating the requirement that a
deputy commissioner make findings of fact and conclusions of law.
Plaintiff appears to argue that he was entitled to a new
opinion and award from Deputy Commissioner Glenn. Plaintiff
argues: "The . . . Commission heard the appeal and remanded thecase due to the failure of the Deputy Commissioner to address all
the facts and for Findings of Fact that deviated from the evidence.
The matter was specifically referred to Deputy Commissioner George
Glenn for further findings." However, despite Plaintiff's
contention to the contrary, the Commission remanded the case for
the sole purpose of "obtaining additional evidence on the issues of
compensability and last injurious exposure." When the parties
decided not to introduce additional evidence, Deputy Commissioner
Glenn properly referred the case back to the Commission. The
Commission did not violate N.C. Gen. Stat. § 97-84 or Workers'
Compensation Rule 611 because Plaintiff had a hearing before Deputy
Commissioner Dollar and she entered an opinion and award with
findings of fact and conclusions of law.
Plaintiff further argues the Commission violated Workers'
Compensation Rule 701 by failing to give Plaintiff an opportunity
to file a brief with the Commission. Plaintiff contends he was
entitled to file a brief with the Commission after the case was
referred back to the Commission by Deputy Commissioner Glenn. We
disagree. Following Deputy Commissioner Dollar's opinion and
award, Plaintiff appealed to the Commission. Nothing in the record
indicates that Plaintiff was denied the opportunity to file a brief
with the Commission in support of his appeal. In fact, in response
to Plaintiff's arguments, the Commission allowed Plaintiff the
opportunity to introduce additional evidence before a deputy
commissioner. However, Plaintiff chose not to do so. Plaintiff
has not cited any authority in support of his argument that he wasentitled to file a new brief after the case was referred back to
the Commission, and we find none. Moreover, nothing in the record
indicates that Plaintiff requested the opportunity to do so. We
hold the Commission did not err, and we overrule these assignments
Plaintiff also argues that several of the Commission's
findings of fact were unsupported by the evidence and that the
Commission failed to consider all of the evidence. Our review of
an opinion and award by the Commission is limited to two inquiries:
(1) whether there is any competent evidence in the record to
support the Commission's findings of fact; and (2) whether the
Commission's conclusions of law are justified by its findings of
fact. Counts v. Black & Decker Corp.
, 121 N.C. App. 387, 389, 465
S.E.2d 343, 345, 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
contrary findings. 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
. Johnson v. Herbie's Place
, 157 N.C.
App. 168, 171, 579 S.E.2d 110, 113, disc. review denied
, 357 N.C.
460, 585 S.E.2d 760 (2003). It is well settled that the Commission
is the "sole judge of the weight and credibility of the
evidence[.]" Deese v. Champion Int'l Corp.
, 352 N.C. 109, 116, 530
S.E.2d 549, 553 (2000). On appeal, this Court may not re-weigh
evidence or assess credibility of witnesses. Adams v. AVX Corp.
,349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh'g denied
N.C. 108, 532 S.E.2d 522 (1999).
Plaintiff first challenges finding of fact number five, in
which the Commission found the following:
On April 20, 1999, Dr. Albert Curseen, an
internal medicine physician, examined
[P]laintiff and diagnosed him with asbestosis.
Dr. Curseen saw [P]laintiff on referral from
[P]laintiff's attorney on April 7, 1999.
There is no evidence that Dr. Curseen
personally obtained or reviewed any chest x-
rays for [P]laintiff. The evidence shows that
on that date, Dr. Curseen examined [P]laintiff
for thirty to forty-five minutes. That was
[P]laintiff's only contact with Dr. Curseen at
the time of the diagnosis, and [P]laintiff has
not seen Dr. Curseen since that date.
Further, there is no evidence in the record to
support a finding that Dr. Curseen has ever
been recognized as a certified B reader or has
any expertise as a radiologist.
Plaintiff challenges the following sentence in finding of fact
number five: "There is no evidence that Dr. Curseen personally
obtained or reviewed any chest x-rays for [P]laintiff." Plaintiff
argues this finding was unsupported because, while Dr. Curseen did
not review x-rays during his initial visit with Plaintiff, Dr.
Curseen did obtain and review x-rays later, and prepared an
addendum to his report. However, the Commission did not find that
Dr. Curseen never reviewed any x-rays. When the challenged
sentence is placed in context, it is clear that the Commission
found that Dr. Curseen had not reviewed any x-rays at the time he
made his diagnosis. It is undisputed that he did not review any x-
rays before making his initial diagnosis. Therefore, the
challenged finding was supported by the evidence. Plaintiff also challenges the Commission's finding that "there
is no evidence in the record to support a finding that Dr. Curseen
has ever been recognized as a certified B reader or has any
expertise as a radiologist." This finding is also supported by the
evidence because Dr. Curseen is not a radiologist. Rather, Dr.
Curseen testified that he was a physician practicing in the field
of "[pulmonary and critical care[,]" and was board certified in
internal medicine. Although Dr. Curseen testified that he reviewed
x-rays as a regular part of his practice, he was not board
certified in radiology and did not testify that he was a certified
B reader. Accordingly, this finding was supported by evidence in
Plaintiff further challenges the portion of finding of fact
number six that provides: "Dr. Bearden did not make specific
findings regarding possible asbestosis, as this [was] not his area
of practice." Plaintiff also challenges finding of fact number
seven, which states:
Dr. Bearden also repeated [P]laintiff's
history of asbestosis; however, in his
deposition, Dr. Bearden noted he had relied on
Dr. Fogarty's assessments on any alleged
asbestosis. Dr. Bearden did not independently
diagnose [P]laintiff with asbestosis and
deferred to Dr. Fogarty's opinion as to the
diagnosis of asbestosis.
These findings are also supported by evidence in the record. Dr.
Bearden testified that he was board certified in "internal
medicine, medical oncology" and further testified that he
specialized in oncology and hematology. Dr. Bearden did not
testify that he specialized in pulmonology. Moreover, Dr. Beardentestified that he did not examine Plaintiff for the purpose of
determining whether Plaintiff had asbestosis. Further, Dr. Bearden
testified that he did not diagnose Plaintiff with asbestosis:
Q. And in your entire file, wherever the term
"asbestosis" appears, is it fair to say -- and
you correct me if I'm wrong, but is it fair to
say that when you indicate [Plaintiff] has
asbestosis, that is based on the diagnosis of
A. History, diagnosis of another physician,
C.T. scan review, and C.T. scan interpretation
by a respected radiologist.
Q. But you never independently diagnosed
[Plaintiff] yourself with asbestosis?
A. No, I didn't make the initial diagnosis.
Rather, Dr. Bearden noted that Plaintiff's pulmonary physician was
Dr. Charles Fogarty, and Dr. Bearden testified that he would defer
to Dr. Fogarty with regard to any asbestosis diagnosis. In an
office note dated 16 November 2001, Dr. Bearden noted:
[Plaintiff] does have thickening on his pleura
on CT scan which is compatible with
asbestosis. [Plaintiff] has had all of his
chest x-rays in Dr. Fogarty's office. Dr.
Fogarty says that it is compatible with
asbestosis. I was not able to say clearly one
way or the other. I was just quoting the
opinions of two other physicians who had seen
[Plaintiff]. I did not make this specific
Based upon the above evidence, the Commission's findings of fact
were adequately supported.
Plaintiff also challenges finding of fact number eight, which
Dr. Fogarty noted [P]laintiff's "diagnosis of
asbestosis" based upon [P]laintiff's
subjective account of his medical history,rather than reviewing competent medical
records. It is noted that Dr. Fogarty was not
even aware of which physician diagnosed
[P]laintiff with asbestosis. Therefore, Dr.
Fogarty's recitation of "diagnosis of
asbestosis" is not competent evidence that
[P]laintiff contracted the occupational
disease, but is merely a restatement of
[P]laintiff's medical history as related by
Plaintiff further challenges the Commission's finding that Dr.
Fogarty "declined to diagnos[e] [P]laintiff with asbestosis."
However, Dr. Fogarty testified as follows:
Q. Did you diagnose [Plaintiff] with
A. No. All that I did was repeat
[Plaintiff's] stated diagnosis. I don't think
that I have the information to diagnose
[Plaintiff] with asbestosis in the sense that
to do that, you have to have a -- you have to
have evidence of the exposure. And asbestosis
refers to parenchymal involvement, not the
pleural calcification. And we don't --
usually we have rales that you can hear.
Certainly in the advanced cases, you expect to
hear some rales. Sometimes you can see them
before they show up on a chest film. And
you'd have some hint -- if it's advanced, you
would expect there's some hint on a chest film
of a CT scan of parenchymal involvement.
Q. And you didn't see any of that?
A. No, sir.
Dr. Fogarty also testified that Plaintiff said he had been
diagnosed with asbestosis. However, Dr. Fogarty did not know who
diagnosed Plaintiff. Further, Dr. Fogarty testified that he did
not treat Plaintiff for the purpose of determining what caused
Plaintiff's symptoms: "The whole thrust was -- again, I should have
known better -- the whole thrust [was] we [were] not interested infinding out what caused this, we [were] not interested in
litigation. We [were] just interested in improving [Plaintiff's]
functional status." Accordingly, the Commission's findings of fact
were supported by competent evidence.
Plaintiff also argues that the Commission failed to consider
much of the evidence. "Before making findings of fact, the
Industrial Commission must consider all
of the evidence. The
Industrial Commission may not discount or disregard any evidence,
but may choose not to believe the evidence after
Weaver v. American National Can Corp.
, 123 N.C. App. 507, 510, 473
S.E.2d 10, 12 (1996). "The Commission is not required, however, to
find facts as to all credible evidence. That requirement would
place an unreasonable burden on the Commission. Instead, the
Commission must find those facts which are necessary to support its
conclusions of law." London v. Snak Time Catering, Inc.
, 136 N.C.
App. 473, 476, 525 S.E.2d 203, 205 (2000) (citations omitted).
In the present case, the Commission found as follows: "15.
Plaintiff has submitted the records of B-readers and radiologists
who indicate that radiological studies of [P]laintiff's lungs show
changes consistent with asbestos exposure. However, no diagnosis
of asbestosis was made. Further, no testimony was presented from
these physicians." Based upon this finding of fact, it is clear
that the Commission considered all of the evidence presented.
However, the Commission determined that while these physicians
opined that Plaintiff's lungs showed changes "consistent with
asbestos exposure," none of the physicians diagnosed Plaintiff withasbestosis. Plaintiff cites to medical reports from Dr. Frederick
Dula, Dr. Phillip Lucas, Dr. Richard Bernstein, Dr. John Wu, and
Dr. Michael Alexander. However, these physicians, as reflected in
the Commission's finding, did not diagnose Plaintiff with
asbestosis. Rather, they simply noted that their findings were
consistent with asbestosis. Accordingly, finding number fifteen
was supported by competent evidence. Furthermore, finding number
fifteen demonstrates that the Commission considered all of the
evidence presented. We overrule the assignments of error grouped
under this argument.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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