{ "id": 4157612, "name": "ELSIE J. KELLY, Sister of BETTY JEAN JEFFREYS, Deceased Employee, Plaintiff v. DUKE UNIVERSITY, Employer, (Self-Insured), Defendant", "name_abbreviation": "Kelly v. Duke University", "decision_date": "2008-06-03", "docket_number": "No. COA07-874", "first_page": "733", "last_page": "742", "citations": [ { "type": "official", "cite": "190 N.C. App. 733" } ], "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": "N.C. Gen. Stat. \u00a7 97-21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "518 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11145362 ], "year": 1999, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0452-01" ] }, { "cite": "357 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "678" }, { "page": "678" } ], "opinion_index": 0 }, { "cite": "320 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728643 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "43" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0038-01" ] }, { "cite": "598 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "190" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995888 ], "year": 2004, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0113-01" ] }, { "cite": "348 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "318 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4738742 ], "year": 1986, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0089-01" ] }, { "cite": "589 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491873, 491779, 491689, 491626, 491853, 491503, 491442, 491510, 491831 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0579-04", "/nc/357/0579-03", "/nc/357/0579-02", "/nc/357/0579-08", "/nc/357/0579-09", "/nc/357/0579-01", "/nc/357/0579-06", "/nc/357/0579-05", "/nc/357/0579-07" ] }, { "cite": "581 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "88" } ], "opinion_index": 0 }, { "cite": "158 N.C. 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App. 538", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916614 ], "year": 1995, "pin_cites": [ { "page": "541-42" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0538-01" ] }, { "cite": "581 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187488 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "350" }, { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0341-01" ] }, { "cite": "538 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "353 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135777 ], "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0227-01" ] }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "414" }, { "page": "414" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "282 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "304 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565243 ], "year": 1981, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0001-01" ] }, { "cite": "409 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521328 ], "year": 1991, "pin_cites": [ { "page": "285-86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0284-01" ] }, { "cite": "327 S.E.2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4721088, 4722128, 4723161, 4721278, 4726335 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0330-05", "/nc/313/0330-03", "/nc/313/0330-01", "/nc/313/0330-02", "/nc/313/0330-04" ] }, { "cite": "322 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "637", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526096 ], "year": 1984, "pin_cites": [ { "page": "626", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0625-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2007, "pin_cites": [ { "page": "(9)" }, { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-88", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-40", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2007, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 2007, "opinion_index": 0 } ], "analysis": { "cardinality": 865, "char_count": 21325, "ocr_confidence": 0.75, "pagerank": { "raw": 1.3275369476277077e-07, "percentile": 0.6282480175485134 }, "sha256": "c46a0400a28bf06da288c8da3c3254afbc38c7b1462493c4269d0d208594da82", "simhash": "1:166bad42143b6070", "word_count": 3452 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and ARROWOOD concur." ], "parties": [ "ELSIE J. KELLY, Sister of BETTY JEAN JEFFREYS, Deceased Employee, Plaintiff v. DUKE UNIVERSITY, Employer, (Self-Insured), Defendant" ], "opinions": [ { "text": "McCullough, Judge.\nDefendant appeals an Opinion and Award of the North Carolina Industrial Commission (\u201cthe Commission\u201d), finding that Betty J. Jeffreys (\u201cdecedent\u201d) died as a proximate result of a compensable occupational disease and awarding decedent\u2019s sole surviving sibling, Elsie J. Kelley (\u201cplaintiff\u2019), death benefits pursuant to N.C. Gen. Stat. \u00a7 97-38 (2007).\nThe evidence before the Commission tended to show that decedent began working as a medical secretary in the Anesthesia Department at Duke University Medical Center (\u201cdefendant\u201d) on 13 March 1996.\nAs part of decedent\u2019s job responsibilities, decedent provided secretarial and administrative support to an exceptionally demanding doctor. This doctor criticized decedent in the presence of others and was generally abusive towards her. The extreme stress of decedent\u2019s work environment exacerbated her pre-existing diabetic condition and caused her overall health to deteriorate. With the aggravation of her diabetic condition, in April 1997, decedent began to experience a loss of most of the vision in her right eye. In January 1998, decedent lost most of the vision in her left eye. Despite her vision problems, decedent continued to work for defendant until 1 April 1999, when she was placed on disability retirement.\nOn 8 April 1999, decedent filed a Form 18, claiming that while employed by defendant, decedent sustained an injury by accident or \u25a0occupational disease oh 11 April 1997 as a result of mental stress induced by her work environment.\nOn 28 December 2000, following a hearing of the matter, Deputy Commissioner Jones of the North Carolina Industrial Commission (\u201cDeputy Commissioner Jones\u201d) filed an Opinion and Award concluding that decedent had contracted a compensable occupational disease in which her stressful work environment aggravated and accelerated her pre-existing diabetic condition, anxiety, depression, and carpal tunnel syndrome. Deputy Commissioner Jones concluded that decedent\u2019s diabetes resulted in decedent\u2019s loss of vision in both eyes and awarded decedent total disability compensation benefits pursuant to N.C. Gen. Stat. \u00a7 97-29 (2007) beginning on 1 April 1999.\nOn 2 February 2001, Dr. Scott V. Joy began treating decedent\u2019s various conditions, including her insulin-dependent diabetes. Decedent routinely documented her glucose levels in logbooks, which Dr. Joy reviewed during their appointments. These glucose levels began increasing significantly in 2003, and Dr. Joy considered treating decedent with a continuous glucose monitor.\nOn 7 January 2004, decedent called Dr. Scott\u2019s triage nurse, stating that she had been sick for three weeks with chest congestion and a cough. Based on this phone call, Dr. Joy diagnosed decedent with an upper respiratory infection and prescribed her an antibiotic. On 10 January 2004, decedent died. Decedent did not leave behind any dependents and was survived only by plaintiff, her sister.\nAlthough no one performed an autopsy on decedent to determine the cause of decedent\u2019s death, Dr. Joy stated that it was a common practice to complete a death certificate without performing an autopsy. Dr. Joy opined that although it was possible that decedent died due to. complications from her respiratory infection, the most likely cause of decedent\u2019s death was a cardiovascular event secondary to complications of diabetes. Defendant did not offer any medical evidence to rebut Dr. Joy\u2019s opinion.\nThe Commission found that decedent\u2019s death was proximately caused by complications from her compensable diabetic condition and awarded plaintiff death benefits pursuant to N.C. Gen. Stat. \u00a7 97-38 and funeral expenses pursuant to N.C. Gen. Stat. \u00a7 97-40 (2007). In addition, the Commission concluded that pursuant to N.C. Gen. Stat. \u00a7 97-31 (2007), plaintiff\u2019s estate had a vested right to payment of -240 weeks of compensation for decedent\u2019s industrial blindness.\nOn appeal, defendant contends that the Commission erred by: (1) failing to conclude that plaintiffs claim for death benefits was barred by the statute of limitations set forth in N.C. Gen. Stat. \u00a7 97-38; (2) making findings of fact that are not supported by competent evidence; and (3) allowing plaintiff to recover damages under both N.C. Gen. Stat. \u00a7 97-29 (2007) and N.C. Gen. Stat. \u00a7 97-31. In addition, plaintiff seeks an award of attorney\u2019s f\u00e9es under N.C. Gen. Stat. \u00a7 97-88 (2007).\nI. Statute of Limitations\nDefendant first contends that the Commission erred by failing to conclude that plaintiff\u2019s claim was barred by the statute of limitations set forth in N.C. Gen. Stat. \u00a7 97-38. Specifically, defendant contends that because the parties stipulated throughout the proceedings that decedent\u2019s injury occurred on 11 April 1997, the statute of limitations began to run as of that date and the Commission was without authority to determine that decedent was not disabled until 1 April 1999. Because we find that \u201cdate of injury\u201d and \u201cdate of disability\u201d are terms of art under N.C. Gen. Stat. \u00a7 97-2 (2007), we disagree.\nDeath benefits under the Workers\u2019 Compensation Act are governed by N.C. Gen. Stat. \u00a7 97-38, which provides, in pertinent part:\nIf death results proximately from a compensable injury or occupational disease and [occurs] within six years thereafter, or within two years of the final determination of disability, whichever is later . . . the employer shall pay . . . compensation!.]\nId.\nWe have held that in an occupational disease case, the six-year statute of limitation provided by \u00a7 97-38 begins to run from the date of the employee\u2019s \u201cdisability,\u201d as defined by N.C. Gen. Stat. \u00a7 97-2(9), which is the \u201c \u2018incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.\u2019 \u201d Joyner v. J.P. Stevens and Co., 71 N.C. App. 625, 626, 322 S.E.2d 636, 637 (1984) (citation omitted), disc. review denied, 313 N.C. 330, 327 S.E.2d 891 (1985). \u201cInjury,\u201d on the other hand, is defined by N.C. Gen. Stat. \u00a7 97-2(6), which provides that the term \u201c \u2018[i]njury . . .\u2019 shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form[.]\u201d Thus, it is clear that under \u00a7 97-2, \u201cinjury\u201d and \u201cdisability\u201d do not have the same meanings.\nBecause the case before us is an occupational disease case as opposed to an injury by accident case, we find that the date relevant for purposes of the statute of limitations is the \u201cdate of disability\u201d rather than the \u201cdate of injury.\u201d Here, the statute of limitations began to run on the date of disability, 1 April 1999, which the Commission found to be the date that decedent became incapable of earning the wages that she was receiving at the time of the injury. The fact that decedent began experiencing symptoms of her occupational disease on 1 April 1997, the stipulated date of injury, is irrelevant to our analysis, as decedent maintained her original earning capacity until 1 April 1999. As such, the Commission properly concluded plaintiffs claim was not barred by the statute of limitations set forth in N.C. Gen. Stat. \u00a7 97-38. Accordingly, this assignment of error is overruled.\nII. Cause of Decedent\u2019s Death\nNext, defendant contends that the Commission\u2019s finding of fact as to the cause of decedent\u2019s death is not supported by competent evidence of record. Defendant argues that Dr. Joy\u2019s opinion was insufficient, as it was based solely on statistical data and no autopsy was performed to determine the actual cause of decedent\u2019s death. We disagree.\nIn reviewing a decision by the Commission, this Court\u2019s role \u201cis 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.\u201d Cross v. Blue Cross/Blue Shield, 104 N.C. App. 284, 285-86, 409 S.E.2d 103, 104 (1991). The Commission\u2019s findings of fact are conclusive upon appeal if supported by competent evidence, even if there is evidence to support a contrary finding. Morrison v. Burlington Industries, 304 N.C. 1, 6, 282 S.E.2d 458, 463 (1981). On appeal, this Court may not reweigh the evidence or assess credibility. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). Findings of fact may be set aside on appeal only \u201cwhen there is a complete lack of competent evidence to support them[.]\u201d Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 914 (2000).\nThe plaintiff in a workers\u2019 compensation case bears the burden of initially proving \u201ceach and every element of compensability,\u201d including a causal relationship between the injury and his employment. Whitfield v. Laboratory Corp. of Am., 158 N.C. App. 341, 350, 581 S.E.2d 778, 784 (2003). Plaintiff must prove causation by a \u201cgreater weight\u201d of the evidence or a \u201cpreponderance\u201d of the evidence. Phillips v. U.S. Air, Inc., 120 N.C. App. 538, 541-42, 463 S.E.2d 259, 261 (1995), aff'd, 343 N.C. 302, 469 S.E.2d 552 (1996).\nIn cases involving complicated medical questions, only an expert can give competent opinion testimony as to the issue of causation. Click v. Freight Carriers, 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Where, as here, medical opinion testimony is required, \u201cmedical certainty is not required, [but] an expert\u2019s \u2018speculation\u2019 is insufficient to establish causation.\u201d Holley v. ACTS, Inc., 357 N.C. 228, 234, 581 S.E.2d 750, 754 (2003). An expert witness\u2019s passing use of the word \u201cspeculate,\u201d however, does not necessarily establish that the witness engaged in speculation. Id. Further, the degree of the doctor\u2019s certainty goes to the weight of his testimony. Martin v. Martin Bros. Grading, 158 N.C. App. 503, 507-08, 581 S.E.2d 85, 88, cert. denied, 357 N.C. 579, 589 S.E.2d 127 (2003). The decision concerning what weight to give expert evidence is a duty for the Commission and not this Court. See Adams, 349 N.C. at 681, 509 S.E.2d at 414.\nIn the instant case, the only medical deposition testimony offered into evidence was the testimony of Dr. Joy taken on 29 June 2005. Dr. Joy\u2019s deposition transcript on direct examination reads in pertinent part:\nQ. (By Mr. Lennon) Do you have an opinion satisfactory to yourself and to a reasonable degree of certainty as an expert in internal medicine, and certified diabetes educator, and as her treating physician, regarding whether more likely than not, Betty Jean\u2019s death resulted proximally from her compensable diabetic condition?\nA. Yes, I believe it\u2019s complications of diabetes.\n* * * *\nQ. All right. In your opinion is it likely that the upper respiratory infection caused her death?\nA. I think there\u2019s no evidence to suggest that, and she was treated appropriately for upper respiratory infection.\n(Emphasis added.) Dr. Joy\u2019s deposition transcript on cross-examination reads in pertinent part:\nQ. Okay. It\u2019s pretty much speculation [that decedent died from a cardiovascular event related to diabetes], isn\u2019t it?\nA. I think based on the data and knowing the complications that Betty Jean had, cardiovascular events [related to diabetes] are the number one, but she did have an upper respiratory infection that may have led to some problems.\n(Emphasis added.)\nThus, although Dr. Joy indicated that it was possible that decedent died of complications from her upper respiratory infection, Dr. Joy testified that it was \u201cmore likely than not\u201d that decedent\u2019s diabetes caused her death. See Whitfield, 158 N.C. App. at 351, 581 S.E.2d at 785 (\u201cWe acknowledge that the \u2018mere possibility of causation,\u2019 as opposed to the \u2018probability\u2019 of causation, is insufficient to support a finding of compensability.\u201d) (citation omitted). This opinion was based not only on the temporal sequence of events, but also on statistical information and Dr. Joy\u2019s knowledge of the history of decedent\u2019s condition. We therefore conclude that there is competent evidence in the record to support the Commission\u2019s finding that decedent\u2019s death was proximately caused by her compensable occupational disease. This assignment of error is overruled.\nIII. Compensation under N.C. Gen. Stat. \u00a7 97-31\nFinally, defendant contends that the Commission erred in awarding decedent\u2019s estate a separate award of 240 weeks for loss of vision under N.C. Gen. Stat. \u00a7 97-31 because decedent had already been awarded total disability compensation under \u00a7 97-29. We agree.\nN.C. Gen. Stat. \u00a7 97-31 provides:\nIn cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit:\n* * * *\n(17) The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of G.S. 97-29. The employee shall have a vested right in a minimum amount of compensation for the total number of weeks of benefits provided under this section for each member involved. When an employee dies from any cause other than the injury for which he is entitled to compensation, payment of the minimum amount of compensation shall be payable as provided in G.S. 97-37.\n(Emphasis added.)\nOur Supreme Court has held that the \u201cin lieu of\u2019 clause of \u00a7 97-31 was intended to \u201cprevent[] double recovery without making the schedule [provided by \u00a7 97-31] an exclusive remedy.\u201d Whitley v. Columbia Lumber Mfg. Co., 318 N.C. 89, 98, 348 S.E.2d 336, 341 (1986). Thus, \u201c[w]here an employee can show both a disability pursuant to G.S. \u00a7\u00a7 97-29 or 97-30 and a specific physical impairment pursuant to G.S. \u00a7 97-31, he may not collect benefits pursuant to both schemes, but rather is entitled to select the statutory compensation scheme which provides the more favorable remedy.\u201d Collins v. Speedway Motor Sports Corp., 165 N.C. App. 113, 119, 598 S.E.2d 185, 190 (2004). As a general rule, \u201cstacking of benefits covering the same injury for the same time period is prohibited!-]\u201d Gupton v. Builders Transport, 320 N.C. 38, 43, 357 S.E.2d 674, 678 (1987).\nPlaintiff argues that decedent never made an election to receive benefits under \u00a7 97-29. We disagree. Here, the Commission found as a fact that decedent suffered from a loss of vision in both eyes and that she was compensated for that impairment by an award of total disability compensation pursuant N.C. Gen. Stat. \u00a7 97-29, in the amount of $709.77 per week, beginning 1 April 1999. She continued to receive these payments until the date of her death in 2004. Because it is well settled that the \u201cin lieu of\u2019 clause of \u00a7 97-31 is a bar to double recovery, decedent is not entitled to recover once under \u00a7 97-29 and then again under \u00a7 97-31. Therefore, the Commission erred in concluding that decedent\u2019s estate had a vested right in an additional 240 weeks of compensation pursuant to \u00a7 97-31. Accordingly, we reverse the Commission\u2019s award of compensation in the amount of $473.20 per week for 240 weeks.\nIV. Attorney\u2019s Fees\nNow, we turn to plaintiff\u2019s request for an award of attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 97-88. Section 97-88 provides that the Commission or a reviewing court may award costs to an injured employee if the insurer has appealed and, on appeal, the Commission or reviewing court orders the insurer to make, or continue to make, payments to the employee. Flores v. Stacy Penny Masonry Co., 134 N.C. App. 452, 459, 518 S.E.2d 200, 205 (1999). We conclude that the requirements of \u00a7 97-88 are satisfied, and we exercise our discretion to grant plaintiff\u2019s request. We remand to the Commission to determine the amount of reasonable attorney\u2019s fees incurred by plaintiff on this appeal.\nAccordingly, the Opinion and Award of the Commission is affirmed in part and reversed in part.\nAffirmed in part; reversed in part.\nJudges ELMORE and ARROWOOD concur.\n. As an aside, however, we note that even though decedent elected an award of benefits under \u00a7 97-29, if decedent had died prior to receiving a full 240 weeks of such payments, plaintiff would then be entitled to recover the more generous vested benefits available pursuant to \u00a7 97-31, less the amount she had already received. See Gupton, 320 N.C. at 43, 357 S.E.2d at 678 (\u201c[B]ecause the prevention of double recovery, not exclusivity of remedy, is patently tire intent of the \u2018in lieu of all other compensation\u2019 clause in N.C.G.S. \u00a7 97-31, a plaintiff entitled to select a remedy under either N.C.G.S. \u00a7 97-31 or N.C.G.S. \u00a7 97-30 may receive benefits under the provisions offering the more generous benefits, less the amount he or she has already received.\u201d).", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Lennon & Camak, P.L.L.C., by George W. Lennon and Michael W. Bertics, for plaintiff appellee.", "Cranfill, Sumner & Hartzog, L.L.P., by Jonathan G. Anders and Meredith L. Taylor, for defendant appellant." ], "corrections": "", "head_matter": "ELSIE J. KELLY, Sister of BETTY JEAN JEFFREYS, Deceased Employee, Plaintiff v. DUKE UNIVERSITY, Employer, (Self-Insured), Defendant\nNo. COA07-874\n(Filed 3 June 2008)\n1. Workers\u2019 Compensation\u2014 occupational disease \u2014 statute of limitations \u2014 date of injury \u2014 date of disability\nThe Industrial Commission did not err by concluding that plaintiff\u2019s claim for workers\u2019 compensation death benefits was not barred by the statute of limitations set forth in N.C.G.S. \u00a7 97-38 because: (1) \u201cdate of injury\u201d and \u201cdate of disability\u201d are terms of art under N.C. Gen. Stat. \u00a7 97-21 with different meanings; (2) in an occupational disease case, the six-year statute of limitation provided by N.C.G.S. \u00a7 97-38 begins to run from the date of the employee\u2019s disability, which is the incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment; whereas N.C.G.S. \u00a7 97-2(6) provides that the term injury shall mean only injury by accident arising out of and in the course of the employment, and shall not include a disease in any form; (3) the fact that this is an occupational disease case as opposed to an injury by accident case reveals the date relevant for purposes of the statute of limitations is the date of disability rather than the date of injury; and (4) the statute of limitations began to run on 1 April 1999, the date the Commission found that decedent became incapable of earning the wages that she was receiving at the time of the injury, and the fact that decedent began experiencing symptoms of her occupational disease on 1 April 1997, the stipulated date of injury, is irrelevant, as decedent maintained her original earning capacity until 1 April 1999.\n2. Workers\u2019 Compensation\u2014 cause of death \u2014 compensable occupational disease \u2014 weight of expert testimony\nThe Industrial Commission did not err in a workers\u2019 compensation case by its finding of fact that the cause of decedent\u2019s death was her compensable occupational diabetic disease because: (1) the decision concerning what weight to give expert evidence is a duty for the Commission and not the Court of Appeals; (2) although plaintiff\u2019s medical expert indicated that it was possible that decedent died of complications from her upper respiratory infection, the expert testified that it was more likely than not that decedent\u2019s diabetes caused her death; and (3) this opinion was based not only on the temporal sequence of events, but also on statistical information and the expert\u2019s knowledge of the history of decedent\u2019s condition.\n3. Workers\u2019 Compensation\u2014 total disability compensation\u2014 separate award for loss of vision\nThe Industrial Commission erred in a workers\u2019 compensation case by awarding decedent\u2019s estate a separate award of 240 weeks for loss of vision under N.C.G.S. \u00a7 97-31 when decedent had already been awarded total disability compensation under N.C.G.S. \u00a7 97-29; and the Commission\u2019s award of compensation in the amount of $473.20 per week for 240 weeks is reversed, because: (1) our Supreme Court has held that the \u201cin lieu of\u2019 clause of N.C.G.S. \u00a7 97-31 was intended to prevent double recovery without making the schedule provided by \u00a7 97-31 an exclusive remedy; (2) where an employee can show both a disability under N.C.G.S. \u00a7\u00a7 97-29 or 97-30 and a specific physical impairment under N.C.G.S. \u00a7 97-31, he may not collect benefits pursuant to both schemes, but rather is entitled to select the statutory compensation scheme which provides the more favorable remedy; and (3) as a general rule, stacking of benefits covering the same injury for the same time period is prohibited.\n4. Costs\u2014 attorney fees \u2014 workers\u2019 compensation appeal\nThe Court of Appeals exercised its discretion in a workers\u2019 compensation case and granted plaintiff\u2019s request for an award of attorney fees under N.C.G.S. \u00a7 97-88 which provides that the Commission or a reviewing court may award costs to an injured employee if the insurer has appealed and, on appeal, the Commission or reviewing court orders the insurer to make, or continue to make, payments to the employee. This case is remanded to the Commission to determine the amount of reasonable attorney fees incurred by plaintiff on this appeal.\nAppeal by defendant from an Opinion and Award filed 27 April 2007 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 January 2008.\nLennon & Camak, P.L.L.C., by George W. Lennon and Michael W. Bertics, for plaintiff appellee.\nCranfill, Sumner & Hartzog, L.L.P., by Jonathan G. Anders and Meredith L. Taylor, for defendant appellant." }, "file_name": "0733-01", "first_page_order": 765, "last_page_order": 774 }