{ "id": 9251660, "name": "MARION I. HATCHER, Executor of the Estate of Norman Hatcher, Deceased Employee, Plaintiff v. DANIEL INTERNATIONAL CORP., Employer, and KEMPER INSURANCE CO., Carrier, Defendants", "name_abbreviation": "Hatcher v. Daniel International Corp.", "decision_date": "2002-11-05", "docket_number": "No. COA01-1342", "first_page": "776", "last_page": "782", "citations": [ { "type": "official", "cite": "153 N.C. App. 776" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "425 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 123", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524589 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0123-01" ] }, { "cite": "335 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522400 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0352-01" ] }, { "cite": "188 S.E. 111", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "opinion_index": 0 }, { "cite": "210 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628176 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/210/0647-01" ] }, { "cite": "400 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "101 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527983 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/101/0564-01" ] }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "362-63", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "89" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "539 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "141 N.C. App. 417", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441503 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/141/0417-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-57", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2002, "opinion_index": 0 }, { "cite": "290 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572767 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0593-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "508 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "131 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11200245 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/131/0389-01" ] }, { "cite": "560 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "148 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9366720 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/148/0493-01" ] } ], "analysis": { "cardinality": 621, "char_count": 14736, "ocr_confidence": 0.737, "pagerank": { "raw": 6.427312570699041e-08, "percentile": 0.39707025390283374 }, "sha256": "b31323aeab4e20060fa6481cc846c46404a7f3c562df60e501aad2bdcad1cf8c", "simhash": "1:a1b14f86dc5a2bd2", "word_count": 2264 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARION I. HATCHER, Executor of the Estate of Norman Hatcher, Deceased Employee, Plaintiff v. DANIEL INTERNATIONAL CORP., Employer, and KEMPER INSURANCE CO., Carrier, Defendants" ], "opinions": [ { "text": "MARTIN, Judge.\nPlaintiff appeals from an opinion and award of the Industrial Commission denying a claim for compensation and death benefits for the death of Norman Hatcher (\u201cdecedent-employee\u201d). The record reflects that Norman Hatcher filed an Industrial Commission Form 18, dated 3 December 1991, alleging that his exposure to asbestos while working for defendant-employer had resulted in \u201casbestosis and other asbestos-related lung diseases.\u201d He filed a Form 33, dated 21 July 1994, requesting that the claim be assigned for a hearing. Norman Hatcher died on 25 April 1995 due to lung cancer and the executor of his estate was substituted as plaintiff.\nA deputy commissioner denied the claim on 27 March 2000 and plaintiff appealed to the Full Commission. By an opinion and award filed 26 July 2001, the Full Commission found that decedent-employee had been exposed to asbestos fiber and dust throughout his 46-year career as a millwright, carpenter, and welder, and that this exposure had \u201clikely caused\u201d both his asbestosis and lung cancer. The Commission also found that decedent-employee worked for defendant-employer at a location insured by defendant-carrier for several different periods, the last one ending in 1976, during which he was exposed to asbestos fiber and dust in the workplace. In addition, the Commission found that, after retiring in 1978, decedent-employee returned to work at intervals. In particular, plaintiff was employed by Mundy Industrial Contractors, Inc., (\u201cMundy\u201d) in 1988 and 1989.\nThe Commission found that:\n[w]hile employed as a millwright for defendant-employer and then for Mundy at the General Electric plant through 1989, decedent was exposed to asbestos in the form of insulation. Decedent, in some instances, actually saw and consequently inhaled the asbestos dust while working for Mundy at the General Electric plant.\nIt also found that decedent-employee\u2019s last employment in any capacity was with Mundy in 1989. The medical testimony indicated, and the Commission found, that decedent-employee was not disabled by asbestosis but became disabled after he developed lung cancer. The Commission concluded that plaintiff\u2019s last injurious exposure to asbestos did not occur while he was employed, by defendant Daniel International Corp. and denied his claim against defendants.\nOn appeal, plaintiff asserts the Commission erred in denying benefits for asbestosis and lung cancer because (1) there was not competent evidence in the record to support the Commission\u2019s findings regarding decedent-employee\u2019s last injurious exposure to asbestos and (2) the Commission applied the wrong legal standard in evaluating both claims. Appellate review of a decision of the Industrial Commission is limited to a determination of whether there is competent evidence in the record to support the Commission\u2019s findings of fact and whether those findings adequately support the conclusions of law and award. See Boles v. U.S. Air, Inc., 148 N.C. App. 493, 560 S.E.2d 809 (2002). If properly supported, the Commission\u2019s findings of fact are binding on appeal even though the evidence might also support contrary findings. See Locklear v. Steelman Corp., 131 N.C. App. 389, 508 S.E.2d 795 (1998). The Commission\u2019s conclusions of law are reviewable by the appellate courts. N.C. Gen. Stat. \u00a7 97-86; Hilliard v. Apex Cabinet Co., 305 N.C. 593, 290 S.E.2d 682 (1982).\nUnder G.S. \u00a7 97-52, \u201c[disablement or death of an employee resulting from an occupational disease\u201d is compensable under the Workers\u2019 Compensation Act (\u201cthe Act\u201d). The Act contains a list of diseases that qualify as occupational diseases. See N.C. Gen. Stat. \u00a7 97-53 (2002). Asbestosis is specifically enumerated under G.S. \u00a7 97-53(24) and is compensable if a causal connection is shown between the disease and employment. See N.C. Gen. Stat. \u00a7 97-57; Clark v. ITT Grinnell Industrial Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369 (2000). Lung cancer, though not specifically enumerated, may also qualify as an occupational disease if it satisfies the requirements of the statute\u2019s catch-all provision, G.S. \u00a7 97-53(13):\nAny disease . . . which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment.\nCertain occupational diseases develop gradually and after cumulative or repeated exposure to the hazards of the disease. See Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983). Because an employee may be exposed to those hazards over the course of a career with several different employers, the General Assembly set out guidelines for employer and carrier liability for occupational disease based on when the employee was \u201clast injuriously exposed\u201d to the hazards of the disease. N.C. Gen. Stat. \u00a7 97-57 (2002).\nFor purposes of asbestosis or silicosis, the statute defines injurious exposure as exposure of at least 30 days or parts thereof in seven consecutive months. See id. Furthermore, the statute creates a presumption that the last 30 days of work involving exposure to asbestos is the last injurious exposure for purposes of employer liability. Nee Barber v. Babcock & Wilcox Constr. Co., 101 N.C. App. 564, 400 S.E.2d 735 (1991). For all other occupational diseases, including those which fall under G.S. \u00a7 97-53(13), last injurious exposure has been described as \u201c \u2018an exposure which proximately augmented the disease to any extent, however slight.\u2019 \u201d Rutledge, 308 N.C. at 89, 301 S.E.2d at 362-63 (citations omitted).\nIn the present case, plaintiff contends decedent-employee\u2019s last injurious exposure to the hazards of both asbestosis and lung cancer occurred in or prior to 1976 while he was employed with defendant-employer, and defendant-carrier was on the risk. As to the asbestosis claim, plaintiff argues that the Commission\u2019s finding that plaintiff was exposed to asbestos while employed with Mundy for at least 30 days in seven consecutive months was not supported by the evidence. First, plaintiff asserts that the only evidence that could support the finding of exposure to asbestos was deposition testimony of the decedent-employee and that such testimony was not competent evidence due to the decedent-employee\u2019s age of 81 years, his indication that he could not remember well or was confused by the questions at deposition, and contradictory testimony about his exposure while working for Mundy.\nAlthough a witness who can remember nothing is not competent to testify, a weak or impaired memory goes not to the competency of the evidence, but rather the weight to be accorded the testimony. See State v. Witherspoon, 210 N.C. 647, 188 S.E. 111 (1936). The deposition testimony at issue was included in the stipulated exhibits and there is no indication that plaintiff objected to its admission. Furthermore, it is the sole province of the Commission to determine the credibility of witnesses and the weight to be given their testimony. See Boles, supra. A review of the deposition of decedent-employee does not indicate that he was clearly incompetent to testify; absent such, this Court may not disturb the Commission\u2019s decision with respect to the weight to be given the evidence and the findings based upon it.\nNext, plaintiff argues that evidence of asbestos exposure must be \u201cquantifiable,\u201d i.e., that the Commission must be able to point to, or count, the number of days in which exposure occurred in order to determine whether decedent sustained exposure of at least 30 days or parts thereof in seven months as required under the statute. Without such \u201cquantifiable\u201d evidence, plaintiff argues that the Commission cannot find as a fact that such exposure occurred. The cases plaintiff cites in support of this argument do not necessarily indicate that the Commission must point to 30 specific days of exposure as long as there is competent evidence from which such exposure can be inferred, such as an average number of days each week or month in which an employee was exposed over time. See, e.g., Woodell v. Starr Davis Co., 77 N.C. App. 352, 335 S.E.2d 48 (1985). These cases, however, do not limit the Commission\u2019s ability to rely on inferences that may reasonably be drawn from the evidence of record. See Ivey v. Fasco Industries, 109 N.C. App. 123, 425 S.E.2d 744 (1993).\nEvidence of decedent-employee\u2019s asbestos exposure at Mundy includes a social security earnings statement showing that he worked for Mundy in 1988 and 1989, earning annual totals of $7,113.97 and $3,000.11 respectively. Decedent-employee testified at his deposition that he worked for Mundy for at least a six-month period at one point. In response to questions about the presence of asbestos dust in the work environment at Mundy, decedent-employee responded: \u201cSometimes. Not all the time, but just sometimes during the time I was working with Mundy.\u201d This evidence supports a reasonable inference that decedent-employee was exposed to asbestos for at least 30 days or parts thereof within seven consecutive months while working for Mundy. The Commission\u2019s finding applied the correct legal standard according to G.S. \u00a7 97-57. Therefore, we decline to disturb the Commission\u2019s conclusion that decedent-employee\u2019s last injurious exposure to the hazards of asbestosis occurred with Mundy.\nWith respect to the lung cancer claim, plaintiff argues that the Commission applied the incorrect legal standard in determining decedent-employee\u2019s last injurious exposure to the hazards of lung cancer. In order to qualify as injurious under G.S. \u00a7 97-57, an occupational exposure to the hazards of lung cancer need only proximately augment the condition, however slightly. See Rutledge, supra. The Commission found that \u201c[d]ecedent\u2019s lung cancer . . . was likely caused by his exposure to asbestos in his various work environments\u201d (emphasis added). Thus, the exposure to asbestos sustained by decedent while working for both defendant-employer and Mundy qualifies as \u201cinjurious\u201d under G.S. \u00a7 97-57. Other findings by the Commission clearly indicate that Mundy, not defendant-employer, was decedent\u2019s last employer. Therefore, despite the Commission\u2019s failure to couch its findings in terms of proximate augmentation of the lung cancer, we hold those findings support the Commission\u2019s conclusion with respect to the lung cancer claim that \u201cdecedent\u2019s last injurious exposure to asbestos did not occur while he was employed by the defendant-employer .. . .\u201d\nPlaintiff next challenges the adequacy of the evidence to support the Commission\u2019s findings. Plaintiff asserts that all of the medical opinion testimony on causation and increased risk for lung cancer followed a question by defense counsel describing the decedent as being exposed to asbestos \u201con a regular basis.\u201d Plaintiff contends there is no evidence that decedent was exposed to asbestos on a regular basis with Mundy, and thus any findings based on the subsequent medical opinions offered by the witness could only lead to the conclusion that decedent was last injuriously exposed with defendant-employer. We disagree.\nIn response to defense counsel\u2019s question, Dr. Credle, the expert medical witness, testified that decedent-employee\u2019s occupational asbestos exposure put him at increased risk for contracting lung cancer compared to the general population and that the exposure was a significant contributing factor to his development of the disease. Dr. Credle had also testified earlier that decedent\u2019s occupational asbestos exposure \u201cwas the likely cause\u201d of his lung cancer and, in response to earlier hypothetical questions that \u201cthe more you\u2019re exposed [to asbestos], the more likely you are to have disease and the more likely it is to be bad disease.\u201d Taken as a whole, this evidence supports the Commission\u2019s finding of a causal link between decedent\u2019s lung cancer and \u201chis various work environments.\u201d This finding, in turn, supports the Commission\u2019s conclusion that decedent-employee was not last injuriously exposed to asbestos while employed by defendant-employer.\nAffirmed.\nJudges TYSON and THOMAS concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Scudder & Hedrick, by Samuel A. Scudder, for plaintiff-appellant.", "Marshall Williams & Gorham, L.L.P., by Ronald H. Woodruff, for defendant-appellees." ], "corrections": "", "head_matter": "MARION I. HATCHER, Executor of the Estate of Norman Hatcher, Deceased Employee, Plaintiff v. DANIEL INTERNATIONAL CORP., Employer, and KEMPER INSURANCE CO., Carrier, Defendants\nNo. COA01-1342\n(Filed 5 November 2002)\n1. Workers\u2019 Compensation\u2014 credibility of witness \u2014 weak and confused memory \u2014 province of Commission\nThe Industrial Commission\u2019s decision in a workers\u2019 compensation case concerning weight to be given the deposition testimony of an 81-year-old decedent-employee who could not remember well or who was confused by the questions was not disturbed. Although a witness who can remember nothing is not competent to testify, a weak or impaired memory goes to the weight of the testimony and it is the sole province of the Commission to determine the credibility and weight of testimony.\n2. Workers\u2019 Compensation\u2014 last injurious exposure\u2014 inference\nThe Industrial Commission\u2019s conclusion that decedent employee\u2019s last injurious exposure to the hazards of asbestosis occurred with Mundy (a company other than defendant) was upheld where the evidence supported a reasonable inference that decedent-employee was exposed for at least 30 days or parts thereof within seven consecutive months while working for Mundy. The cases cited by plaintiff for the assertion that the Commission must be able to point to days in which exposure occurred do not limit the Commission\u2019s ability to rely on inferences that may reasonably be drawn from the evidence.\n3. Workers\u2019 Compensation\u2014 last injurious exposure \u2014 proximate augmentation of lung cancer \u2014 language of finding\nThe findings in a workers\u2019 compensation action supported the Industrial Commission\u2019s conclusion that, with respect to lung cancer, decedent\u2019s last injurious exposure to asbestos did not occur while he was employed by defendant even though the Commission did not couch its findings in terms of proximate augmentation of lung cancer. The Commission found that decedent\u2019s lung cancer was likely caused by his exposure to asbestos.\n4. Workers\u2019 Compensation\u2014 asbestos \u2014 last injurious exposure\nThe Industrial Commission\u2019s conclusion that decedent-employee was not last injuriously exposed to asbestos while employed by defendant-employer was supported by the evidence.\nAppeal by plaintiff from opinion and award entered 26 July 2001 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 22 August 2002.\nScudder & Hedrick, by Samuel A. Scudder, for plaintiff-appellant.\nMarshall Williams & Gorham, L.L.P., by Ronald H. Woodruff, for defendant-appellees." }, "file_name": "0776-01", "first_page_order": 806, "last_page_order": 812 }