Shackleton v. Southern Flooring & Acoustical Co.

• Decision Date: 19 April 2011
• Docket Number: No. COA10–734.,COA10–734.
• Citation: 712 S.E.2d 289
• Court: North Carolina Court of Appeals
• Parties: Wendy SHACKLETON, as the Executrix of the Estate of Brenda P. Gainey, Deceased, and as the Executrix of the Estate of Leward Benmack Gainey, Deceased Employee, Plaintiffv.SOUTHERN FLOORING & ACOUSTICAL COMPANY, Employer,andUSF & G Kemper Insurance Company, Carrier, Defendants.

712 S.E.2d 289

Wendy SHACKLETON, as the Executrix of the Estate of Brenda P. Gainey, Deceased, and as the Executrix of the Estate of Leward Benmack Gainey, Deceased Employee, Plaintiff

v.SOUTHERN FLOORING & ACOUSTICAL COMPANY, Employer,andUSF & G Kemper Insurance Company, Carrier, Defendants.

No. COA10–734.

Court of Appeals of North Carolina.

April 19, 2011.

OPINION TEXT STARTS HERE

Appeal by Plaintiff from Opinion and Award of the Full North Carolina Industrial Commission entered 22 March 2010 by Commissioner Christopher Scott. Heard in the Court of Appeals 10 January 2011.

Wallace and Graham, P.A., by Edward L. Pauley, Salisbury, for Plaintiff–Appellant.

Teague, Campbell, Dennis & Gorham, L.L.P., by Bruce A. Hamilton, Raleigh, Tracy L. Jones, and Leslie B. Price, Raleigh, for Defendants–Appellees.

THIGPEN, Judge.

The Industrial Commission concluded Decedent's death was not caused by asbestosis and that since the attendant care of Decedent was not prescribed by a doctor, it was not compensable. We must decide whether the conclusions of law of the Industrial Commission were supported by the findings of fact, and the findings of fact, in turn, supported by the evidence. We affirm the decision of the Industrial Commission on the issue of death benefits. We remand on the issue of compensation for attendant care.

The record and procedural history of this case show the following: Leward Benmack Gainey (“Decedent”) was employed by Southern Flooring & Acoustical (“Defendant”) from 1969 to 1983. Decedent began his work for Defendant as a field installer, a job which primarily involved the installation of asbestos tiles in ceilings. On 8 April 1999, Decedent filed a Form 18B with the Industrial Commission, seeking benefits for his occupational disease resulting from exposure to asbestos during his employment with Defendant. On 2 September 2003, the Full Commission entered an Opinion and Award concluding that “[Decedent] was last injuriously exposed to asbestos during his employment with Southern Flooring and that [Decedent] had contracted asbestosis as a result of that exposure.” Estate of Gainey v. S. Flooring & Acoustical Co., 184 N.C.App. 497, 500, 646 S.E.2d 604, 606 (2007). The Commission, however, “remanded the matter to a deputy commissioner for immediate hearing and Opinion and Award regarding the disability of [Decedent] as a result of his asbestosis.” Id., 184 N.C.App. at 500, 646 S.E.2d at 606. A deputy commissioner entered an opinion and award concluding that Decedent was totally and permanently disabled, and his asbestosis was a significant contributing factor in the disability. The Full Commission entered an Opinion and Award on 2 March 2006,¹ summarized by this Court in Gainey, 184 N.C.App. 497, 646 S.E.2d 604:

[T]he Commission found that (1) [Decedent] had received medical treatment for asbestosis-related problems; (2) [Decedent] suffered from breathing problems as a result of asbestosis; (3) [Decedent] 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) [Decedent]'s breathing problems severely impaired his daily activities; (5) as a result of asbestosis, it was difficult, if not impossible, for [Decedent] to do any job that required any amount of physical activity; and (6) [Decedent] stopped working in 1995 as a result of his disease and [Decedent]'s asbestos-related condition continued to deteriorate until his death. The Commission concluded that as a result of his asbestosis, [Decedent] 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 [Decedent]'s estate in a lump sum, along with attorney's fees in the amount of 25% of the compensation awarded.Id., 184 N.C.App. at 500–01, 646 S.E.2d at 606–07.

On 3 July 2007, this Court affirmed the 2 March 2006 Opinion and Award of the Industrial Commission awarding Decedent permanent and total disability compensation at the weekly rate of $481.24 from 3 December 1999 until the date of his death. See id., 184 N.C.App. at 500–04, 646 S.E.2d at 606–09.

In response to Plaintiff's Form 33 seeking benefits for Decedent's death, Deputy Commissioner Robert J. Harris entered an Opinion and Award on 6 December 2007 concluding that Decedent's asbestosis neither caused nor significantly contributed to Decedent's death. Deputy Commissioner Myra L. Griffen entered an Opinion and Award on 26 June 2008 in response to Plaintiff's Form 33 seeking attendant care benefits, concluding that there was “insufficient competent medical evidence to establish that attendant care was reasonable and necessary as a result of [Decedent]'s compensable asbestosis” and that Decedent's “claim for attendant care services is DENIED.”

On 22 March 2010, the Full Commission entered an order affirming both orders from the Deputy Commissioners, denying Decedent's claim for compensation for death pursuant to N.C. Gen.Stat. § 97–38, and denying Decedent's claim for attendant care benefits pursuant to N.C. Gen.Stat. § 97–2(19) (2009), and N.C. Gen.Stat. § 97–25 (2009). From this Opinion and Award, Plaintiff appeals, challenging the adequacy of the evidence to support the Full Commission's findings of fact with regard to both issues: compensation for death and attendant care benefits.

Standard of Review:

In reviewing a decision by the Industrial Commission, our Court's role “is limited to determining whether there is any competent evidence to support the findings of fact, and whether the findings of fact justify the conclusions of law.” Cross v. Blue Cross/Blue Shield, 104 N.C.App. 284, 285–86, 409 S.E.2d 103, 104 (1991) (citation omitted). “The Commission's findings of fact are conclusive upon appeal if supported by competent evidence, even if there is evidence to support a contrary finding.” Kelly v. Duke Univ., 190 N.C.App. 733, 738, 661 S.E.2d 745, 748 (2008), disc. review denied, 363 N.C. 128, 675 S.E.2d 367 (2009) (citation omitted). On appeal, this Court “does not have the right to weigh the evidence and decide the issue on the basis of its weight[;] [t]he court's duty goes no further than to determine whether the record contains any evidence tending to support the finding.” Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999) (quotation omitted). “ ‘The Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.’ ” Id., 349 N.C. at 680, 509 S.E.2d at 413 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433–34, 144 S.E.2d 272, 274 (1965)). “[F]indings of fact by the Commission may [only] be set aside on appeal 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).

“The Commission's conclusions of law are reviewed de novo.” McRae v. Toastmaster, Inc., 358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004) (citation omitted).

I: Death from Occupational Disease

In Plaintiff's first argument on appeal, she contends the Commission erred by concluding Decedent's asbestosis neither caused nor significantly contributed to Decedent's death.² Specifically, Plaintiff argues the Commission erred because “asbestosis was clearly a causative factor in the death of Decedent.”

“For an injury or death to be compensable under our Workmen's Compensation Act it must be either the result of an accident arising out of and in the course of the employment or an occupational disease.” Booker v. Duke Medical Center, 297 N.C. 458, 465, 256 S.E.2d 189, 194 (1979) (quotations omitted). Death benefits under the Workers' Compensation Act are governed by N.C. Gen.Stat. § 97–38, which states the following:

If 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, the employer shall pay or cause to be paid, subject to the provisions of other sections of this Article, weekly payments of compensation equal to sixty-six and two-thirds percent (66 2/3%) of the average weekly wages of the deceased employee at the time of the accident, but not more than the amount established annually to be effective October 1 as provided in G.S. 97–29, nor less than thirty dollars ($30.00), per week, and burial expenses not exceeding three thousand five hundred dollars ($3,500)[.]

N.C. Gen.Stat. § 97–38.

In asbestosis cases, the question of whether a decedent receives death benefits pursuant to N.C. Gen.Stat. § 97–38 depends upon whether “[the decedent's compensable] asbestosis either caused or significantly contributed to his ... death[.]” Payne v. Charlotte Heating & Air Conditioning, 172 N.C.App. 496, 509, 616 S.E.2d 356, 365 (2005).

The question of whether Decedent's occupational disease caused or significantly contributed to Decedent's death was determined in this case through the testimony of expert witnesses. “In cases involving complicated medical questions, only an expert can give competent opinion testimony as to the issue of causation.” Kelly, 190 N.C.App. at 739, 661 S.E.2d at 748 (citing Click v. Pilot Freight Carriers, Inc. 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980)). “Where, as here, medical opinion testimony is required, ‘medical certainty is not required, [but] an expert's speculation is insufficient to establish causation.’ ” Kelly, 190 N.C.App. at 739, 661 S.E.2d at 748 (quoting Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003)). The Supreme Court has stated that “ ‘[t]he evidence must be such as to take the case out of the realm of conjecture and remote possibility [.]’ ” Holley, 357 N.C. at 232, 581 S.E.2d at 753 (2003) (citing...