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    "judges": [
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    "parties": [
      "WAYNE AUSTIN, EMPLOYEE, Plaintiff-Appellee v. CONTINENTAL GENERAL TIRE, EMPLOYER, Self-Insured, (Gallagher Bassett, Servicing Agent), Defendant-Appellant"
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    "opinions": [
      {
        "text": "ELMORE, Judge.\nContinental General Tire (defendant) appeals a 30 May 2006 Opinion and Award by the Full Commission of the North Carolina Industrial Commission (Full Commission), which awarded workers\u2019 compensation benefits to Wayne Austin (plaintiff). We affirm.\nPlaintiff \u201cwas employed by defendant for over twenty years, during which time the record shows he was repeatedly exposed to asbestos dust and fibers. . . . Plaintiff retired on 1 June 1987 for reasons unrelated to asbestos exposure.\u201d Austin v. Continental Gen. Tire, 141 N.C. App. 397, 399-00, 540 S.E.2d 824, 826 (2000), rev\u2019d on other grounds, 354 N.C. 344, 553 S.E.2d 680 (2001) (Austin I).\nIn 1989, plaintiff filed a Form 18 notice of accident, seeking workers\u2019 compensation benefits for asbestosis; in 1995 he filed a Form 33 request for hearing. Defendant denied liability, and a hearing was conducted before a Deputy Commissioner in May, 1996. In July, 1998 the Deputy Commissioner entered an Opinion and Award\nmaking thorough and extensive findings of fact and concluding that plaintiff had contracted asbestosis, entitling him to 104 weeks of compensation pursuant to N.C. Gen. Stat. \u00a7 97-61.5(b) (1991) at the rate of $30.00 per week. Plaintiff appealed to the Commission, which . . . determined that plaintiff suffered from asbestosis and was entitled to 104 weeks of compensation pursuant to N.C.G.S. \u00a7 97-61.5(b), but at the rate of $308.00 per week....\nAustin I at 402, 540 S.E.2d at 828.\nDefendant appealed, and in Austin I this Court affirmed the Full Commission. Austin I at 414, 540 S.E.2d at 834. Judge Greene dissented on the basis that \u201cbecause plaintiff was not employed by defendant at the time of his diagnosis and, therefore, was not \u2018removed\u2019 from his employment pursuant to section 97-61.5(b), section 97-64 provides plaintiff\u2019s sole remedy for his alleged asbestos-related disorder.\u201d Id. at 416, 540 S.E.2d at 836 (Greene, J., dissenting). The North Carolina Supreme Court reversed in a per curiam opinion stating that:\nFor the reasons stated in the dissenting opinion by Judge Greene, we reverse the decision of the Court of Appeals and remand this case to that court for further remand to the North Carolina Industrial Commission for proceedings not inconsistent with this opinion and Judge Greene\u2019s dissent below.\nAustin v. Continental Gen. Tire, 354 N.C. 344, 553 S.E.2d 680 (2001) (Austin II).\nOn remand, the Full Commission remanded to the Deputy Commissioner for an evidentiary hearing to determine plaintiff\u2019s eligibility for workers\u2019 compensation benefits under N.C. Gen. Stat. \u00a7 97-64. Defendants objected, arguing that it would be more appropriate to convene a panel of the Full Commission to determine plaintiff\u2019s disability based on only the existing record. Following a hearing in June, 2004, the Deputy Commissioner issued an Opinion and Award on 16 December 2004, from which defendant appealed. The Full Commission vacated the Opinion and Award of the Deputy Commissioner and issued its own Opinion and Award on 30 May 2006. The Full Commission found that plaintiff was diagnosed with asbestosis in 1994, and had been totally disabled by February 1998. The Full Commission awarded \u201cpermanent total disability benefits to plaintiff at the rate of $308.00 per week beginning February 2, 1998 and continuing throughout plaintiff\u2019s lifetime.\u201d The Full Commission also ordered defendant to pay for all medical expenses arising from plaintiff\u2019s asbestosis. From this Opinion and Award, defendant appeals.\nThe Commission has exclusive original jurisdiction over workers\u2019 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 axe justified by the findings of fact.\nChambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citations and quotations omitted). \u201cThe Commission\u2019s 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.\u201d Hobbs v. Clean Control Corp., 154 N.C. App. 433, 435, 571 S.E.2d 860, 862 (2002) (citations omitted). \u201cThe Commission\u2019s findings of fact may only be set aside when \u2018there is a complete lack of competent evidence to support them.\u2019 \u201d Evans v. Wilora Lake Healthcare/Hilltopper Holding Co., 180 N.C. App. 337, 339, 637 S.E.2d 194, 195 (2006) (quoting Click v. Freight Carriers, 300 N.C. 164, 166, 265 S.E.2d 389, 390 (1980)). \u201cHowever, the Commission\u2019s conclusions of law are reviewable de novo by this Court.\u201d Hawley v. Wayne Dale Constr., 146 N.C. App. 423, 427, 552 S.E.2d 269, 272 (2001) (citations omitted).\nDefendant argues first that the Full Commission\u2019s 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\u2019s remand to a Deputy Commissioner for a hearing on the issue of plaintiff\u2019s disability violated the remand order from the North Carolina Supreme Court. We disagree.\nDefendant\u2019s 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:\nFollowing an appeal to this Court if the case is remanded to the Commission, the full Commission must strictly follow this Court\u2019s mandate without variation or departure. Ordinarily upon remand the full Commission can comply with this Court\u2019s 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.\n112 N.C. App. 587, 590, 436 S.E.2d 589, 592 (1993). We conclude that Crump is not, as asserted by defendant, \u201ca mandatory directive that no further evidence or hearing is to be conducted unless the appellate court reviewing the matter on rare occasion orders the same.\u201d 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 dicta-, the issue raised by the appellant in Crump was whether the Full Commission erred by adopting the Deputy Commissioner\u2019s 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 appellate court.\nIn the instant case, the North Carolina Supreme Court simply ordered the Commission to conduct \u201cproceedings not inconsistent with this opinion and Judge Greene\u2019s dissent below.\u201d Austin II at 345, 553 S.E.2d at 680. As the sole basis for the dissent was that plaintiff was required to seek workers\u2019 compensation benefits under N.C. Gen. Stat. \u00a7 97-64 rather than N.C. Gen. Stat. \u00a7 97-61.5, the Commission\u2019s remand for determination of plaintiffs entitlement to benefits under \u00a7 97-64 was consistent with the Court\u2019s opinion and the dissent. This assignment of error is overruled.\nDefendant 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\u2019s disability was an issue in the first hearing. The issue at the first hearing was plaintiff\u2019s entitlement to benefits under N.C. Gen. Stat. \u00a7 97-61.1 through 61.7. Under these statutes, \u201ca diagnosis of asbestosis, for purposes of determining eligibility to receive benefits, is the equivalent of a finding of actual disability.\u201d 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\u2019s 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. \u00a7 97-64, which provides that \u201cin case of disablement or death from silicosis and/or asbestosis, compensation shall be payable in accordance with the provisions of the North Carolina Workers\u2019 Compensation Act.\u201d N.C. Gen. Stat. \u00a7 97-64 (2005). Thus, plaintiff\u2019s disability was clearly at issue on remand. Moreover, recent opinions of this Court addressing this situation clearly contemplate an eviden-tiary hearing on remand. See, e.g., Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C. App. 252, 257, 565 S.E.2d 218, 221 (2002) (\u201c[T]hough plaintiff does not qualify for compensation pursuant to G.S. \u00a7 97-61.5, he is nevertheless entitled to pursue a claim for compensation pursuant to G.S. \u00a7 97-64. That statute provides ... \u2018in case of disablement... from... asbestosis, compensation shall be payable in accordance with the provisions of the North Carolina Workers\u2019 Compensation Act.\u2019 . . .If, on remand, plaintiff establishes his disablement from asbestosis, and his entitlement to compensation pursuant to G.S. \u00a7 97-64, the Commission must determine his average weekly wage.\u201d) (Emphasis added). Moreover, even if the Commission had addressed plaintiff\u2019s disability at the first 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 overruled.\nDefendant argues next that the Commission erred by taking new evidence following remand because the evidence regarding plaintiff\u2019s disability \u201cwas available at the time of the first hearing . . . .\u201d Defendant contends that new evidence \u201cwould have to constitute newly discovered evidence under [N.C. Gen. Stat. \u00a7 1A-1,] Rule 60(b)(2).\u201d We disagree.\nFirst, defendant cites no pertinent authority for the propetition that the Commission\u2019s authority to take additional evidence regarding the issue of plaintiff\u2019s disability is limited by the strictures of Rule 60. Defendant also contends that plaintiff\u2019s disability was \u201cat issue\u201d 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. \u00a7 97-61.5. N.C. Gen. Stat. \u00a7 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. \u00a7 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)).\nDefendant cites no authority supporting its position that plaintiff\u2019s 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:\nWe find convincing the following reasoning of the Connecticut court: \u2018. . . A party to a [workers\u2019] 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.\nHall 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)).\nNor does defendant cite any pertinent authority holding that the Commission\u2019s authority to take new evidence is limited to those issues on which plaintiff presented evidence. In Trivette v. Mid-South Mgmt., Inc., 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. at 142, 571 S.E.2d at 694. This Court held that in so doing the Commission did not exceed its authority. Id. at 143, 571 S.E.2d at 695. In Joyner v. Rocky Mount Mills, the Commission dismissed a plaintiff\u2019s claim for future medical expenses because it determined that the claim \u201chad not been preserved according to the Commission\u2019s rules.\u201d 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\nPlaintiff\u2019s claim . . . embodied a claim for future medical expenses. When the matter was \u2018appealed\u2019 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 rales to deprive a plaintiff of the right to have his case fully determined. Thus, the Commission\u2019s statement. . . that \u2018the issue of payment of future medical expenses is not properly preserved\u2019 will not support the order [dismissing plaintiff\u2019s motion].\nId. at 482, 571 S.E.2d at 613. Thus, even assuming, arguendo, that. disability was raised by plaintiffs initial claim, the fact that it wasn\u2019t litigated at the first hearing did not preclude plaintiffs presenting evidence on the issue on remand. This assignment of error is overruled.\nDefendant argues next that the Full Commission erred by finding that the findings of fact from the first hearing were res judicata in the second one. Assuming, arguendo, that the Full Commission erred in this regard, we conclude that defendant has failed to show prejudice.\nIn its Opinion and Award the Full Commission stated that:\nThe 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.\nDefendant 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\u2019s incorporation of its findings from the first hearing hindered defendant\u2019s ability to defend this action. This assignment of error is overruled.\nDefendant argues next that the Full Commission erred by awarding plaintiff benefits, on the grounds that plaintiff \u201cretired voluntarily\u201d and not due to pulmonary problems. We disagree.\nDefendant 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\u2019 compensation benefits for an occupational disease solely because he or she was retired. See, e.g., Heffner v. Cone Mills Corp., 83 N.C. App. 84, 88, 349 S.E.2d 70, 74 (1986) (\u201c[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.\u201d). In Heffner, the Commission denied the plaintiff\u2019s claim for disability compensation, and in doing so \u201capparently placed great reliance on its conclusion . . . that the plaintiff\u2019s lack of earnings was due to his desire to retire and the closing of the plant where he was working. In doing so, we believe the Commission acted under a misapprehension of the law.\u201d Id.\nThe Heffner rule is consistent with G.S. \u00a7 97-29, the statute through which claimants are awarded benefits for total disability, in that the section provides that compensation is to be paid \u2018during the lifetime of the injured employee,\u2019 and payments are not terminated when a claimant reaches an age at which he or she would have retired if able to work.\nStroud v. Caswell Center, 124 N.C. App. 653, 656, 478 S.E.2d 234, 236 (1996). This assignment of error is overruled.\nWe have considered defendant\u2019s remaining arguments, and conclude that they are without merit.\nFor the reasons discussed above, we conclude that the Commission did not err and that its Opinion and Award should be\nAffirmed.\nJudges McGEE and JACKSON concur.",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Wallace & Graham, PA, by Mona L. Wallace, Cathy Williams, and Edward Pauley, for plaintiff-appellee.",
      "Hedrick Eatman Gardner & Kincheloe, L.L.P., by J. A. Gardner, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "WAYNE AUSTIN, EMPLOYEE, Plaintiff-Appellee v. CONTINENTAL GENERAL TIRE, EMPLOYER, Self-Insured, (Gallagher Bassett, Servicing Agent), Defendant-Appellant\nNo. COA06-1390\n(Filed 21 August 2007)\n1. Workers\u2019 Compensation\u2014 remand \u2014 new hearing\nThe Industrial Commission\u2019s remand of a workers\u2019 compensation case to a deputy commissioner for a hearing did not violate a remand from the Supreme Court which ordered the Commission to conduct \u201cproceedings not inconsistent with this opinion and [the] dissent below.\u201d The authority cited by defendant for the proposition that the Commission was prohibited from conducting an evidentiary hearing on remand was based on language which was dicta and which did not address the Commission\u2019s authority to conduct such a hearing.\n2. Workers\u2019 Compensation\u2014 remand \u2014 disability\u2014not an issue in first hearing\nPlaintiff\u2019s disability was not a contested issue in a prior Industrial Commission hearing, and the Commission was not barred from taking new evidence on remand. Even if the Commission had addressed the issue at the first hearing, defendant cites no .authority for the proposition that the Commission would have been barred from reconsideration of the issue.\n3. Workers\u2019 Compensation\u2014 remand \u2014 new evidence\nThe Industrial Commission was not barred from taking new evidence following remand; defendant cited no authority for the propositions that the Commission\u2019s authority was limited to newly discovered evidence, that plaintiff\u2019s failure to present disability evidence at the first hearing bars him from doing so on remand, or that the Commission\u2019s authority to take new evidence is limited to those issues on which plaintiff presented evidence.\n4. Workers\u2019 Compensation\u2014 remand \u2014 res judicata\nPlaintiff did not show prejudice (assuming error) from an Industrial Commission finding on remand that the findings from the first hearing were res judicata.\n5. Workers\u2019 Compensation\u2014 disability \u2014 retirement before claim filed\nThe Industrial Commission did not err by awarding plaintiff disability benefits where defendant argued that plaintiff had retired voluntarily and not due to pulmonary problems. Defendant cited no authority for the proposition that a claimant cannot recover for an occupational disease if he voluntarily retired before filing a claim, and long-established precedent is to the contrary.\nAppeal by defendant from Opinion and Award entered 30 May 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 9 May 2007.\nWallace & Graham, PA, by Mona L. Wallace, Cathy Williams, and Edward Pauley, for plaintiff-appellee.\nHedrick Eatman Gardner & Kincheloe, L.L.P., by J. A. Gardner, for defendant-appellant."
  },
  "file_name": "0488-01",
  "first_page_order": 520,
  "last_page_order": 528
}
