Torrence v. Aeroquip
| Decision Date | 16 August 2011 |
| Docket Number | I.C. NO. 061152,NO. COA10-1279,COA10-1279 |
| Court | North Carolina Court of Appeals |
| Parties | JAMES PRESSLEY TORRENCE, SR., Employee, Plaintiff v. AEROQUIP n.k.a. EATON CORP., Employer, SELF-INSURED (SEDGWICK CMS, Third-Party Administrator), Defendant |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by defendant from Opinion and Award entered 22 April 2010 in the North Carolina Industrial Commission. Heard in the Court of Appeals 24 March 2011.
Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Martha W. Surles and M. Duane Jones, for Defendant.
Wallace and Graham, P.A., by Michael B. Pross, for Plaintiff.
James Pressley Torrence, Sr. (Plaintiff), worked for Aeroquip, Eaton Corp. (Defendant) from 1988 to 1990, during which time he was allegedly exposed to asbestos, from which Plaintiff developed asbestosis. Defendant appeals an Opinion
and Award from the Full Commission awarding Plaintiff compensation for his occupational disease, arguing the Full Commission erred by failing to admit probative evidence and failing to credit against Plaintiff's award the amount of a separate settlement agreement from a different employer, Fieldcrest Cannon, Inc. We affirm the Opinion and Award of the Full Commission.
The evidence tends to show Plaintiff was employed by Defendant from 17 August 1988 to 12 March 1990. Plaintiff also worked for Fieldcrest Cannon, from July 1983 to February 1988 and from March 1990 to June 1999.
Plaintiff's job with Defendant involved the grinding and filing of automobile parts. The automobile parts contained asbestos. Plaintiff worked for Defendant five to six days per week and eight hours per day. The grinding and filing created dust, which would get on the faces, bodies and clothes of Defendant's employees. Fans in the work area continually stirred the dust. Plaintiff was further exposed to asbestos in the workplace, which fell from pipe insulation that was in poor condition.
While working for Fieldcrest Cannon during the period of time from 1983 to 1988, Plaintiff worked approximately 100 to150 feet away from asbestos insulated pipes, which were in good shape and not creating dust; Plaintiff was in closer proximity with the pipes approximately once per week. When Plaintiff returned to Fieldcrest Cannon in 1990, Plaintiff worked in an area far removed from asbestos and was not exposed to asbestos.
Dr. Stephen Proctor diagnosed Plaintiff with pleural thickening and asbestosis due to asbestos exposure. Dr. Proctor believed Plaintiff developed asbestosis and pleural thickening as a result of his exposure to asbestos dust while employed by Defendant. Dr. Fred Dula also opined Plaintiff's x-rays were consistent with asbestosis and bilateral pleural thickening along Plaintiff's chest walls.
The Full Commission concluded that Plaintiff developed asbestosis as a direct result of his employment with Defendant. The Full Commission also concluded that Plaintiff's last injurious exposure to asbestos occurred during his employment with Defendant, and Defendant "is the responsible employer for [P]laintiff's asbestosis." The Full Commission awarded Plaintiff $40,000 for damage to important internal organs and all medical expenses incurred as a result of his asbestosis. From this Opinion and Award, Defendant appeals.
I: 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 (quotation omitted)." [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).
In its first argument on appeal, Defendant contends the Full Commission erred by failing to admit and consider evidence, including abatement records and a separate record on appeal, and that the Full Commission's failure to consider the contested evidence affected its ultimate conclusion that Defendant was liable for Plaintiff's compensable occupational disease. We disagree.
"[E]videntiary procedures before administrative agencies are not so formal as litigation conducted in the superior courts." Eury v. North Carolina Employment Sec. Comm'n, 115 N.C. App. 590, 602, 446 S.E.2d 383, 390 (1994) (citations omitted)."Strictly speaking, the rules of evidence applicable in our general courts do not govern the Commission's own administrative fact-finding." Haponski v. Constructor's, Inc., 87 N.C. App. 95, 97, 360 S.E.2d 109, 110 (1987) (citations omitted).
The Industrial Commission is an administrative board, with quasi-judicialfunctions. The manner in which it transacts its business is a proper subject of statutory regulation and need not necessarily conform to court procedure except where the statute so requires, or where, in harmony with the statute, or where it fails to speak, the Court of last resort, in order to preserve the essentials of justice and the principles of due process of law, shall consider rules similar to those observed in strictly judicial investigations in courts of law to be indispensable or proper. . . . Under these conditions we might expect a liberal treatment by the courts of the procedure adopted by the Commission with respect to the reception and consideration of evidence upon a claim in "dispute."
Maley v. Thomasville Furniture Co., 214 N.C. 589, 594, 200 S.E. 438, 441 (1938).
The Workers' Compensation Rules of the North Carolina Industrial Commission provide, "[e]xcept under unusual circumstances, all lay evidence must be offered at the initial hearing." 4 N.C.A.C. 10A.0612(c). "Lay evidence can only be offered after the initial hearing by order of a Commissioner or Deputy Commissioner." Id. Furthermore, Industrial Commission Rule 701(6) states that upon appeal to the Full Commission, "[n]o new evidence will be presented to or heard by the Full Commission unless the Commission in its discretion so permits." 4 N.C.A.C. 10A.0701(f).
N.C. Gen. Stat. § 97-85 provides, "the full Commission shall review the award [of a deputy commissioner], and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award[.]" A party "does not have a substantial right to require the Commission to hear additional evidence, and the duty to do so only applies if good ground is shown." Allen v. Roberts Elec. Contrs., 143 N.C. App. 55, 65-66, 546 S.E.2d 133, 141 (2001). "[W]hether 'good ground be shown therefor[]' in any particular case is a matter within the sound discretion of the Commission, and the Commission's determination in that regard will not be reviewed on appeal absent a showing of manifest abuse of discretion." Lynch v. M. B. Kahn Constr. Co., 41 N.C. App. 127, 131, 254 S.E.2d 236, 238, cert. denied, 298 N.C. 298, 259 S.E.2d 914 (1979); see also Chisholm v. Diamond Condominium Constr. Co., 83 N.C. App. 14, 20, 348 S.E.2d 596, 600 (1986), disc. review denied, 319 N.C. 103, 353 S.E.2d 106 (1987).
In the present case, the matter was heard before Deputy Commissioner George T. Glenn on 23 February 2009. Following the hearing, the record was held open to allow the parties to submit additional evidence. On 12 March 2009, Commissioner Glennordered, at the request of the parties, that the parties "shall have 60 days (April 24, 2009) from the date of the hearing to submit any and all other evidence[.]" On April 22, Defendant submitted Defendant's Exhibit No. 8, the Record on Appeal for COA01-258, Baker v. Ivester, and Defendant's Exhibit No. 9, abatement records from the North Carolina Department of Health and Human Services, Division of Public Health. On 24 April 2009, Plaintiff filed a motion to strike Defendant's Exhibits 8 and 9. In Plaintiff's motion, Plaintiff stated that Defendant's Exhibit 8 is "another copy of the same Court of Appeals Record on Appeal the Defense counsel offered at the hearing" on 24 February 2009, which, after objection by Plaintiff, "was not admitted by" Commissioner Glenn. With regard to Defendant's Exhibit 9, Plaintiff stated that Defendant "has not called any witness to either authenticate the materials or somehow make them relevant to this matter." Commissioner Glenn closed the record on 22 August 2009. Although Commissioner Glenn did not comment on whether he allowed the record on appeal and abatement records, Exhibits 8 and 9, into evidence, Commissioner Glenn did list the items he allowed into...
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