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    "judges": [
      "Judges McGEE and ERVIN concur."
    ],
    "parties": [
      "PAULETTE SMITH WISE, Executor of the Estate of HARVEY SMITH, Deceased Employee, Plaintiff v. ALCOA, INC., Employer, SELF-INSURED, Defendant"
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nWhere medical experts testified concerning subjects within their areas of expertise, the Industrial Commission did not err in admitting their testimony. The Commission did not err in finding that plaintiff\u2019s decedent suffered from Barrett\u2019s esophagus. There was evidence in the record to support the Commission\u2019s findings concerning risk factors applicable to decedent. The Commission did not abuse its discretion in denying plaintiff\u2019s motion to admit a deposition from another case as additional evidence. Where plaintiff moved to subpoena evidence that was not relevant to the issue before the Commission, the Commission\u2019s failure to address plaintiffs motion was harmless. Where a non-mandatory provision of federal law recognized the existence of an \u201cassociation\u201d between asbestos exposure and esophageal cancer, that provision was not dispositive of the issue of whether decedent\u2019s esophageal cancer was caused by asbestos exposure.\nI. Factual and Procedural History\nHarvey Smith (Smith) worked for Alcoa, Inc. (defendant) from 1935 until 1978. The parties stipulated that he was exposed to asbestos during his employment with defendant. On 12 February 2008, Smith was diagnosed with esophageal cancer, specifically esophageal adenocarcinoma, from which he died on 9 March 2008 at an advanced age. Subsequently, the executor of his estate, Paulette Smith Wise, (plaintiff) filed this worker\u2019s compensation claim, contending that Smith\u2019s cancer and death were caused or contributed to by asbestos exposure that occurred during his employment with defendant.\nPlaintiff offered three expert witnesses: Dr. Nicholas Shaheen, head of the Center for Esophageal Disease and Swallowing at the University of North Carolina; Dr. Ravi Reddy, Smith\u2019s treating physician; and Dr. Arthur Frank, a board certified expert of occupational medicine. Defendant also offered three expert witnesses: Dr. Ernest McConnell, a veterinary pathologist and toxicologist, and expert in animal medical studies; Dr. Kenneth Karb, a general oncologist; and Dr. Michael Morse, an expert in oncology.\nOn 17 September 2012, the Industrial Commission entered its Opinion and Award. The Commission concluded that plaintiff had failed to prove that Smith\u2019s esophageal cancer was characteristic of individuals engaged in his particular trade or occupation with defendant; that Smith\u2019s employment had put him at increased risk of developing esophageal cancer as compared to members of the general public; and that Smith had contracted a compensable occupational disease while working for defendant. The Industrial Commission denied plaintiff\u2019s claim.\nPlaintiff appeals.\nII. Standard of Review\nReview of an opinion and award of the Industrial Commission \u201cis limited to consideration of whether competent evidence supports the Commission\u2019s findings of fact and whether the findings support the Commission\u2019s conclusions of law. This court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citations and quotations omitted).\n\u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d Anderson v. Lincoln Constr. Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965).\nIII. Arguments\nA. Admission of Expert Testimony\nIn her first argument, plaintiff contends that the Commission erred in admitting the testimony of defendant\u2019s experts. We disagree.\nRule 702 of the North Carolina Rules of Evidence states:\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\nN.C. R. Evid. 702(a), N.C. Gen. Stat. \u00a7 8C-1 (2009). Our Supreme Court, in Howerton v. Arai Helmet, Ltd., detailed a three-step inquiry for evaluating the admissibility of expert testimony: (1) Is the expert\u2019s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert\u2019s testimony relevant? Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citing State v. Goode, 341 N.C. 513, 527-529, 461 S.E.2d 631, 639-641 (1995)).\nPlaintiff contends that defendant\u2019s witnesses, Drs. Karb, Morse and McConnell, were not experts in a medical field relevant to the issue in this case, which plaintiff contends is esophageal cancer resulting from asbestos exposure. However, our Supreme Court held in Howerton that:\n\u201cIt is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession.\u201d \u201cIt is enough that the expert witness \u2018because of his expertise is in a better position to have an opinion on the subject than is the trier of fact.\u2019 \u201d\nId. at 461, 597 S.E.2d at 688 (quoting Goode at 529, 461 S.E.2d at 640).\nDr. Karb was tendered as an expert in oncology. Plaintiff does not challenge this fact. Plaintiff argues, however, that Dr. Karb was not offered as an expert regarding the harms of asbestos, or with regard to gastrointestinal disease such as Barrett\u2019s esophagus. As was stated in Howerton, while this level of detail may have been relevant to Dr. Karb\u2019s credibility before the Commission, it did not mandate the exclusion of his testimony. It was sufficient that Dr. Karb was an expert in oncology, the study, diagnosis and treatment of cancer in general.\nDr. Morse was also tendered as an expert in \u201concology and gastrointestinal oncology.\u201d Again, plaintiff does not challenge his credentials as an oncologist. Rather, plaintiff contends that Dr. Morse, like Dr. Karb, was not qualified to address the specific issue of causation of esophageal cancer. As with plaintiff\u2019s argument concerning Dr. Karb, we are unconvinced by this argument.\nDr. McConnell, a veterinarian, was tendered as an expert in \u201ctoxicology, pathology, and asbestos-associated diseases.\u201d Plaintiff notes that Dr. McConnell is not qualified to treat or evaluate humans for asbestos-related disease, and that he had never been tendered as an expert in human disease resulting from asbestos exposure. However, Dr. McConnell\u2019s testimony was offered to present animal studies which had shown no link between asbestos exposure and esophageal cancer. Dr. McConnell was not called to testify about the treatment or diagnosis of asbestos exposure in humans, but instead to interpret a medical study. We hold that this was within his area of expertise.\nIt is the role of the Commission to consider the reliability and credibility of witnesses. It is not the role of this Court to make de novo determinations concerning the credibility to be given to testimony, or the weight to be given to testimony. We hold that there was evidence in the record to support the Commission\u2019s determination that defendant\u2019s witnesses were sufficiently qualified in their respective fields to testify as experts, and that the Commission was within its discretion to determine the credibility of their testimony and the weight to be given to that testimony.\nThis argument is without merit.\nB. Finding of Fact 11\nIn her second argument, plaintiff contends that the Commission erred in finding that Smith suffered from a condition called Barrett\u2019s esophagus. We disagree.\nDefendant\u2019s position before the Commission was that Smith\u2019s esophageal cancer was caused by a condition called Barrett\u2019s esophagus. In finding of fact 11, the Commission found:\nDecedent suffered from GERD [gastrointestinal reflux disease] for more than twenty years. Based upon the results of pathological examination of the tissue of his esophagus and a preponderance of the credible expert evidence of record, the Full Commission also finds that decedent had Barrett\u2019s esophagus and erosive esophagitis. All three conditions - GERD, Barrett\u2019s esophagus, and erosive esophagitis - are known risk factors for EAC [esophageal adenocarcinoma]. Other risk factors for esophageal cancer that were present in decedent\u2019s medical history were race (white), sex (male), age (elderly), mild obesity, and hiatal hernia (diagnosed in 1983).\nPlaintiff contends that, because none of defendant\u2019s experts have backgrounds in gastroenterology or Barrett\u2019s esophagus, their testimony was not sufficient to support this finding. Similarly, plaintiff contends that plaintiff\u2019s experts, specifically Drs. Reddy and Shaheen, who were qualified in gastroenterology, asserted that Smith did not have Barrett\u2019s esophagus.\nAccording to the pathology report, a biopsy of Smith\u2019s esophagus revealed \u201cintestinal metaplasia[,]\u201d \u201cpoorly differentiated adenocarci-noma[,]\u201d and \u201chistologic findings consistent with Barrett\u2019s esophagus.\u201d This diagnosis was made by the pathologist, whose credentials are unchallenged by plaintiff. Because the Commission had before it the pathologist\u2019s report, which supports a finding of Barrett\u2019s esophagus, and because the pathologist\u2019s credentials were not challenged by plaintiff, we hold that there was evidence in the record sufficient to support the Commission\u2019s finding that Smith suffered from Barrett\u2019s esophagus.\nThis argument is without merit.\nC. Weight Given to Risk Factors\nIn her third argument, plaintiff contends that the Commission erred in giving weight to the known risk factors for esophageal disease. We disagree.\nPlaintiff\u2019s argument is cursory, noting simply that while there are references in the record to these risk factors, no witness stated that they were the cause of Smith\u2019s esophageal cancer. However, the Commission did not conclude that any of these risk factors caused Smith\u2019s cancer; the Commission merely found their existence. Plaintiff herself concedes that references exist in the record to these risk factors. We hold that there was evidence in the record to support the Commission\u2019s finding that these risk factors were present.\nThis argument is without merit.\nD. Motion for Additional Evidence\nIn her fourth argument, plaintiff contends that the Commission erred in failing to address plaintiff\u2019s motion for additional evidence. We disagree.\nIn the Pre-Trial Agreement and Stipulations of the Parties, plaintiff listed Dr. Mark Cullen, a resident of California, as a potential witness. On appeal to the Full Commission, plaintiff moved to admit a deposition of Dr. Cullen from a prior civil action against defendant. Defendant opposed this motion, arguing that the deposition was inadmissible hearsay. Defendant contended that plaintiff had failed to show Dr. Cullen\u2019s unavailability; that the subject of the deposition was meso-thelioma instead of esophageal cancer; that defendant had no reason to cross-examine Dr. Cullen on the relationship between asbestos and esophageal cancer at the deposition; that because Dr. Cullen was an outside consultant, and not an employee of defendant, plaintiff was free to depose him at plaintiff\u2019s discretion; that plaintiff\u2019s failure to do so was deliberate; and that no good grounds existed for the admission of this evidence. The Full Commission denied plaintiffs motion.\nAccording to Rule 701(f) of the Industrial Commission Rules, \u201c[n]o new evidence will be presented to or heard by the Full Commission unless the Commission in its discretion so permits.\u201d 4 N.C. Admin. Code 10A.0701 (2011). The General Statutes provide that \u201cthe full Commission shall review the award, 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[.]\u201d N.C. Gen. Stat. \u00a7 97-85 (2011). In resolving an apparent conflict between the statute and the Industrial Commission Rules, we have held that:\nA plaintiff 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. See Eaton v. Klopman Mills, Inc., 2 N.C. App. 363, 163 S.E.2d 17 (1968). Furthermore, plaintiff concedes that, \u201c[t]he question of whether to reopen a case for the taking of additional evidence is addressed to the sound discretion of the Commission, and its decision is not reviewable on appeal in the absence of a manifest abuse of that discretion.\u201d Pickrell v. Motor Convoy, Inc., 82 N.C. App. 238, 243-44, 346 S.E.2d 164, 168 (1986), rev\u2019d on other grounds, 322 N.C. 363, 368 S.E.2d 582 (1988).\nAllen v. Roberts Elec. Contr., 143 N.C. App. 55, 65-66, 546 S.E.2d 133, 141 (2001). We discern no abuse of discretion in the Commission\u2019s denial of plaintiff\u2019s motion to introduce the deposition of Dr. Cullen.\nEven assuming arguendo that the Commission\u2019s denial of plaintiff\u2019s motion was in error, we have held that \u201c[a]n error in the admission of evidence is not grounds for granting a new trial or setting aside a verdict unless the admission amounts to the denial of a substantial right.\u201d Gray v. Allen, 197 N.C. App. 349, 353, 677 S.E.2d 862, 865 (2009). \u201cThe burden is on the appellant to not only show error, but also to show that he was prejudiced and a different result would have likely ensued had the error not occurred.\u201d Id. In the instant case, plaintiff failed to demonstrate that this error prejudiced plaintiff.\nThis argument is without merit.\nE. Objection to Quashed Subpoena\nIn her fifth argument, plaintiff contends that the Commission erred in quashing plaintiff\u2019s subpoena of defendant\u2019s company representative. We disagree.\nPlaintiff sought to subpoena defendant\u2019s company representative regarding defendant\u2019s knowledge of asbestos-related health risks. This subpoena was quashed by the Deputy Commissioner. Plaintiff contends that this prejudiced plaintiff, in that plaintiff could not cross-examine defendant about defendant\u2019s knowledge of the risks of asbestos exposure. Plaintiff raised this issue on review before the Full Commission. However, the Full Commission did not address this issue in its opinion.\nWe acknowledge that the Full Commission erred in failing to rule on plaintiff\u2019s objection concerning the quashed .subpoena. However, defendant had already stipulated that Smith was exposed to asbestos during his employment with defendant. Defendant\u2019s knowledge or lack thereof of the risks of asbestos exposure was not relevant to the issue of whether Smith\u2019s exposure to asbestos was the cause of his esophageal cancer. Defendant\u2019s representative could not have addressed that issue. As such, even had the ruling to quash the subpoena been reversed, the testimony would not have been relevant. We hold any error to be harmless.\nThis argument is without merit.\nF. Finding of Fact 14\nIn her sixth argument, plaintiff contends that the Commission lacked evidentiary support for its finding of fact 14. We disagree.\nIn finding of fact 14, the Commission found:\nThe National Academy of Sciences was ordered by Congress to study the issue and advise Congress whether asbestos causes gastrointestinal cancers. The National Academy of Sciences\u2019 panels are typically used for politically sensitive issues in areas of science upon which an objective opinion, not influenced by bias, is needed. The panel\u2019s initial report is forwarded to a diverse set of reviewers to achieve a greater consensus and to insure that all sides of the issue are heard and fully considered before a final consensus opinion is reached. In 2006, the Institute of Medicine of the National Academy of Sciences published its findings in a book entitled Asbestos: Selected Cancers. The conclusion reached by the Institute of Medicine (\u201cIOM\u201d) with regard to esophageal cancer specifically was as follows:\nSome studies have found an association between asbestos exposure and esophageal cancer, but the overall results of epidemiology studies are mixed. In addition, what little evidence there is from animal experiments about asbestos\u2019 carcinogenic potentials specifically on esophageal tissues do not support biological activity at this site. On the basis of these observations, the committee concluded that the evidence is inadequate to infer the presence or absence of a causal relationship between asbestos exposures and esophageal cancer.\nPlaintiff does not contend that the facts cited above are incorrect, but rather contends that there was no evidence in the record to support this finding. Plaintiff overlooks the fact that Dr. McConnell testified concerning this report, citing it as an authoritative source. His testimony properly introduced this report into evidence.\nEven assuming arguendo that this finding was in error, however, it was not essential to the Commission\u2019s decision. As we have discussed, the Commission heard the testimony of experts regarding whether asbestos exposure or Barrett\u2019s esophagus caused Smith\u2019s esophageal cancer. Even if we were to assume that this particular finding was in error, that would not detract from the Commission\u2019s ultimate conclusion that plaintiff had failed to prove causation.\nThis argument is without merit.\nG. OSHANC\nIn her seventh argument, plaintiff contends that the Commission erred as a matter of law in issuing an opinion contrary to the law of North Carolina. We disagree.\nPlaintiff contends that the Occupational Safety and Health Act of North Carolina (\u201cOSHANC\u201d) \u201crecognizes that there is a well-established association between asbestos exposure and esophageal cancer.\u201d Plaintiff cites to the Code of Federal Regulations in support of this position.\nThe C.F.R. provision in question is entitled \u201cMedical Surveillance Guidelines for Asbestos Non-Mandatory,\u201d and concerns the toxicology, symptoms, and preventative considerations of asbestos exposure and asbestos-related diseases. 29 C.F.R. \u00a7 1910.1001, App. H (2012). The C.F.R. notes that clinical studies have \u201cshown a definite association between exposure to asbestos and an increased incidence of lung cancer, pleural and peritoneal mesothelioma, gastrointestinal cancer, and asbestosis.\u201d Id. Studies have also shown that \u201c[e]xposure to asbestos has also been associated with an increased incidence of esophageal, kidney, laryngeal, pharyngeal, and buccal cavity cancers.\u201d Id.\nWe note first that this Appendix is labeled \u201cnon mandatory.\u201d Such Appendices generally are designed to provide guidance, rather than imposing specific rules. See e.g. 29 C.F.R. \u00a7 1910.1450, App. B (\u201cThe materials fisted below are offered as non-mandatory guidance.\u201d); 29 C.F.R. \u00a7 1910.1200, App. F (\u201cThis non-mandatory Appendix provides additional guidance on hazard classification for carcinogenicity.\u201d); 29 C.F.R. \u00a7 1910.217, App. D (\u201cAlthough this appendix as such is not mandatory, it references sections and requirements which are made mandatory by other parts of the PSDI standard and appendices.\u201d). We hold that this federal guideline does not constitute North Carolina law, and was not binding upon the Commission.\nEven assuming arguendo that this guideline was binding, it would not be dispositive of this case. At most, this provision recognizes the existence of an \u201cassociation\u201d between asbestos exposure and esophageal cancer, and this association is at best a general one. This general association does not address the pivotal issue before the Commission, which was whether asbestos exposure caused Smith\u2019s esophageal cancer in the instant case. While this guideline may constitute some evidence of causation, it was not dispositive of that issue.\nThis argument is without merit.\nIV. Conclusion\nThe Commission weighed the evidence before it and concluded that plaintiff failed to meet her burden of proving causation. We hold that there was evidence in the record to support the Commission\u2019s findings of fact, and that these findings in turn support the Commission\u2019s conclusion that plaintiff failed to prove causation.\nAFFIRMED.\nJudges McGEE and ERVIN concur.\n. We note that this language has since been amended by statute for cases commenced on or after 1 October 2011. The current language of Rule 702 implements the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed.2d 469 (1993). However, the quoted version of Rule 702 was in effect at the time that the instant case was filed.\n. Plaintiff incorrectly cites to OSHANC (calling it NCOSHA). North Carolina has adopted, in OSHANC, the provisions of the federal OSHA. N.C. Gen. Stat. \u00a7 95-131 (2011). However, the C.F.R. provisions cited by plaintiff are elements of OSHA, not OSHANC, and should properly be attributed to the federal source.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      }
    ],
    "attorneys": [
      "Wallace and Graham, P.A., by Michael B. Pross, for plaintiff-appellant.",
      "Smith Moore Leatherwood LLP, by Jeri L. Whitfield and Lisa K. Shortt, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "PAULETTE SMITH WISE, Executor of the Estate of HARVEY SMITH, Deceased Employee, Plaintiff v. ALCOA, INC., Employer, SELF-INSURED, Defendant\nNo. COA13-29\nFiled 3 December 2013\n1. Workers\u2019 Compensation \u2014 evidence\u2014expert testimony\u2014 witnesses sufficiently qualified\nThe Industrial Commission did not err in a workers\u2019 compensation case by admitting testimony of medical experts. There was evidence in the record to support the Commission\u2019s determination that defendant\u2019s witnesses were sufficiently qualified in their respective fields.\n2. Workers\u2019 Compensation \u2014 findings of fact \u2014 supported by the evidence\nThe Industrial Commission did not err in a workers\u2019 compensation case by finding that plaintiff\u2019s decedent suffered from Barrett\u2019s esophagus. The report of a pathologist, whose credentials were not challenged by plaintiff, supported a finding of Barrett\u2019s esophagus and was sufficient evidence to support the Commission\u2019s finding.\n3. Workers\u2019 Compensation \u2014 findings of fact \u2014 supported by the evidence\nThe Industrial Commission did not err in a workers\u2019 compensation case by giving weight to the known risk factors for esophageal disease. There was evidence in the record to support the Commission\u2019s finding that these risk factors were present.\n4. Workers\u2019 Compensation \u2014 admission of additional evidence\u2014 denial of motion \u2014 not prejudicial\nThe Industrial Commission did not abuse its discretion in a workers\u2019 compensation case by denying plaintiff\u2019s motion to admit a deposition from another case as additional evidence. Even assuming arguendo that the denial was erroneous, plaintiff failed to show that the error was prejudicial.\n5. Workers\u2019 Compensation \u2014 quashed subpoena \u2014 no error\nThe Industrial Commission did not err in a workers\u2019 compensation case by quashing plaintiff\u2019s subpoena of defendant\u2019s company representative regarding defendant\u2019s knowledge of asbestos-related health risks. Defendant had already stipulated that plaintiff was exposed to asbestos during his employment with defendant and defendant\u2019s knowledge or lack thereof of the risks of asbestos exposure was not relevant to the issue of whether defendant\u2019s exposure to asbestos was the cause of his esophageal cancer.\n6. Workers\u2019 Compensation \u2014 finding of fact \u2014 supported by the evidence\nThe Industrial Commission\u2019s challenged finding of fact in a workers\u2019 compensation case did not lack evidentiary support. An expert witness cited the report which formed the basis of the finding as an authoritative source and the report was properly introduced into evidence. Furthermore, even assuming arguendo that this finding was erroneous, it was not essential to the Commission\u2019s decision.\n7. Workers\u2019 Compensation \u2014 opinion not contrary to law\u2014 federal provision not dispositive\nThe Industrial Commission did not err as a matter of law in a workers\u2019 compensation case by issuing an opinion contrary to the law of North Carolina. Where a non-mandatory provision of federal law recognized the existence of an \u201cassociation\u201d between asbestos exposure and esophageal cancer, that provision was not dispositive of the issue of whether decedent\u2019s esophageal cancer was caused by asbestos exposure.\nAppeal by plaintiff from order entered 17 September 2012 by the North Carolina Industrial Commission. Heard in the Court of Appeals 4 June 2013.\nWallace and Graham, P.A., by Michael B. Pross, for plaintiff-appellant.\nSmith Moore Leatherwood LLP, by Jeri L. Whitfield and Lisa K. Shortt, for defendant-appellee."
  },
  "file_name": "0159-01",
  "first_page_order": 169,
  "last_page_order": 179
}
