{ "id": 6777793, "name": "DOUGLAS SCOTT FILE, Employee-Plaintiff v. NORANDAL USA, INC., Employer, ACE USA, Carrier, Defendants", "name_abbreviation": "File v. Norandal USA, Inc.", "decision_date": "2014-02-18", "docket_number": "No. COA13-977", "first_page": "397", "last_page": "405", "citations": [ { "type": "official", "cite": "232 N.C. App. 397" } ], "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": "656 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640366 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "682", "parenthetical": "\"[T]he Commission is not required to make findings as to each fact presented by the evidenced\"" }, { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0676-01" ] }, { "cite": "670 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642372 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "312" }, { "page": "311" }, { "page": "312" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/se2d/670/0309-01" ] }, { "cite": "663 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641508 ], "year": 2008, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0322-01" ] }, { "cite": "586 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "836-37", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957782 ], "year": 2003, "pin_cites": [ { "page": "605-06", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0597-01" ] }, { "cite": "339 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "496" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520586 ], "year": 1986, "pin_cites": [ { "page": "333-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0324-01" ] }, { "cite": "265 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "391", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559969 ], "year": 1980, "pin_cites": [ { "page": "167", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0164-01" ] }, { "cite": "343 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525370 ], "year": 1986, "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0650-01" ] }, { "cite": "301 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "365", "parenthetical": "citations and quotation omitted" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "pin_cites": [ { "page": "93", "parenthetical": "citations and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "434 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520298 ], "year": 1993, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0103-01" ] }, { "cite": "188 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155886 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "763", "parenthetical": "\"[T]he Commission is not required to make findings as to each fact presented by the evidenced\"" }, { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0755-01" ] }, { "cite": "502 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "62", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465738 ], "year": 1998, "pin_cites": [ { "page": "139", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0135-01" ] }, { "cite": "194 N.C. App. 662", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4163459 ], "year": 2009, "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0662-01" ] }, { "cite": "541 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "515", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439515 ], "year": 2001, "pin_cites": [ { "page": "78-79", "parenthetical": "citation and quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0071-01" ] }, { "cite": "486 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "254", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712737 ], "year": 1997, "pin_cites": [ { "page": "680", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0678-01" ] }, { "cite": "191 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159481 ], "year": 2008, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0301-01" ] }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "669 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "584", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "362 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149368 ], "year": 2008, "pin_cites": [ { "page": "660", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0657-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(13)" }, { "page": "(13)" }, { "page": "(13)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 885, "char_count": 20652, "ocr_confidence": 0.721, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18226332886589142 }, "sha256": "5a37cdf9521fa43a65a68d328118c19cb19e0c6fbe6f51de811685b9034eca02", "simhash": "1:e59a66c93a312ab5", "word_count": 3249 }, "last_updated": "2023-07-14T19:34:41.441392+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE and Judge HUNTER, Robert C., concur." ], "parties": [ "DOUGLAS SCOTT FILE, Employee-Plaintiff v. NORANDAL USA, INC., Employer, ACE USA, Carrier, Defendants" ], "opinions": [ { "text": "ELMORE, Judge.\nDouglas Scott File (plaintiff) appeals from the North Carolina Industrial Commission\u2019s denial of his claim for workers\u2019 compensation benefits pursuant to N.C. Gen. Stat. \u00a7 97-53. After careful review, we affirm the Opinion and Award of the Industrial Commission.\nI. Background\nOn 28 April 2005, plaintiff filed a Form 18 \u201cNotice of Accident to Employer and Claim of Employee\u201d alleging that his close proximity to high energy machinery at his workplace exposed him to radiation that contributed to the development of brain cancer. Plaintiff\u2019s employer, Norandal USA, Inc. (defendant), denied plaintiff\u2019s claim. Thereafter, the claim was assigned for hearing before the Industrial Commission, and Deputy Commissioner J. Brad Donovan denied plaintiff\u2019s claim for workers\u2019 compensation benefits. Plaintiff subsequently appealed to the Full Commission (the Commission). In an Opinion and Award filed 10 May 2013, the Commission ruled that plaintiff failed to \u201cprove that he suffer[ed] from an occupational disease compensable within the meaning of N.C. Gen. Stat. \u00a7 97-53(13)\u201d and denied his claim. Plaintiff now appeals to this Court from the Commission\u2019s 10 May 2013 Opinion and Award.\nII. Facts\nDefendant is a company that owns an aluminum plant (the plant) in Salisbury and manufactures aluminum foil. Plaintiff worked for defendant in the plant from 1984 until 2007. Between the years of 1984 and 1994, plaintiff was employed as a mill operator. The mill is a machine that transforms a thick sheet of aluminum to a thin sheet of aluminum foil. The plant has five mills in operation, and each utilizes a \u201cMeasurex\u201d device (collectively \u201cthe devices\u201d), which sends x-ray beams through an aluminum sheet to measure its thickness. Once the thickness is determined, the device sends the data to a computer that modifies the mill rolls to make sure the aluminum thickness is appropriate.\nPlaintiff worked in the maintenance department from 1994 until his retirement in 2007. Plaintiff was diagnosed with brain cancer in 2000, had surgery to remove a benign tumor, and returned to work after six months. The brain cancer returned in 2004, and once again plaintiff missed time from work to treat his condition. Plaintiff returned to work, only to be diagnosed with brain cancer again and develop a malignant tumor in 2007. Due to complications from the third surgery, plaintiff was unable to perform his occupational responsibilities and he retired on disability.\nDuring plaintiff\u2019s employment, his work duties included preventative maintenance and repairs on the mills, which exposed him to the devices on a daily basis. Plaintiff testified that he worked within three to five feet of the devices while they were running. This was corroborated by Terry Walker, a colleague of plaintiffs, who performed the same job responsibilities. Plaintiff called Dr. Max Costa and Dr. David Schwartz as expert witnesses. They both opined that plaintiff\u2019s employment increased his risk of developing brain cancer due to radiation exposure from the devices.\nThe devices were manufactured by Honeywell Corporation, and Robert Kesslick was Honeywell\u2019s on-site technician during plaintiff\u2019s employment. Kesslick maintained the devices\u2019 control system and made repairs on the devices. Defendant called Kesslick as a witness, and he testified that the closest an individual could get to Mills #2 and #3 was five feet and ten feet on Mills #1 and #4. He further stated that throughout his years testing the devices, he \u201cnever received a dosage of any recordable level of radiation.\u201d Defendant tendered Dr. Robert Dixon as an expert in x-ray physics with subspecialties in radiation shielding and radiation dosimetry. He concluded that any radiation exposure to employees from the devices would be \u201cvirtually non-existent[.]\u201d\nAt the hearing, plaintiff introduced the on-site device safety manual provided by Honeywell to defendant, an \u201cIonizing Radiation Fact Book[,]\u201d and the \u201cBEIR Study\u201d to contradict defendant\u2019s witnesses about the devices\u2019 radiation levels and the effects of radiation on humans.\nIII. Analysis\na.) Consideration of Evidence\nPlaintiff argues that the Commission erred by disregarding documentary evidence introduced by him during Dixon\u2019s testimony and Kesslick\u2019s deposition. We disagree.\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 \u2018court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u2019 \u201d Richardson v. Maxim Healthcare/Allegis Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted) (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). This Court conducts a de novo review of the Commission\u2019s conclusions of law. Starr v. Gaston Cnty. Bd. of Educ., 191 N.C. App. 301, 305, 663 S.E.2d 322, 325 (2008).\nBefore the Commission makes findings of fact, it \u201cmust consider and evaluate all of the evidence. Although the Commission may choose not to believe the evidence after considering it, it may not wholly disregard or ignore competent evidence.\u201d Lineback v. Wake Cnty. Bd. of Comm\u2019rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997) (citations omitted). Where the Commission\u2019s Opinion and Award fails to indicate that it considered testimony \u201crelevant to the exact point in controversy,\u201d it \u201cmust be vacated, and the proceeding remanded to the Commission to consider all the evidence, make definitive findings' and proper conclusions therefrom, and enter the appropriate order.\u201d Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71, 78-79, 541 S.E.2d 510, 515 (2001) (citation and quotation omitted). However, we have specifically declined to \u201crequire findings of fact regarding a report\u201d used during depositions. Hunt v. N. Carolina State Univ., 194 N.C. App. 662, 666, 670 S.E.2d 309, 312 (2009).\nIn Hunt, the plaintiff argued on appeal that the Commission erroneously ignored an opinion of an expert \u201cby not considering or mentioning [the expert\u2019s] vocational report\u201d in its Opinion and Award. Id. at 664-65, 670 S.E.2d at 311. The expert did not testify at the hearing in front of the Commission or by deposition. Id. at 665, 670 S.E.2d at 312. Instead, two doctors relied on the expert\u2019s report during their testimony. Id. at 666, 670 S.E.2d at 312. Because the Commission made specific findings as to the doctors\u2019 testimony, this Court ruled that \u201c[i]t was not necessary for the Commission to make further findings regarding the documents used during the depositions.\u201d Id.\nSimilarly, plaintiff in this case introduced the safety manual, the \u201cIonizing Radiation Fact Book[,]\u201d and the \u201cBEIR Study\u201d to contradict Dixon\u2019s testimony about the devices\u2019 radiation levels and the effects of radiation on humans. The safety manual was also discussed in detail during Kesslick\u2019s deposition. While the Commission did not specifically mention the documents in its Opinion and Award, it made detailed findings about both Dixon\u2019s and Kesslick\u2019s testimony. Thus, similar to Hunt, the Commission was not required to make specific findings of fact related to the documents used during the testimony of Dixon and Kesslick. See Bryant v. Weyerhaeuser Co., 130 N.C. App. 135, 139, 502 S.E.2d 58, 62 (1998) (quotation omitted) (acknowledging that while the Commission \u201cdid not specifically find that it was rejecting the evidence\u201d in support of appellant\u2019s contention, \u201c[s]uch negative findings are not required\u201d); See also Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 763, 656 S.E.2d 676, 682 (2008)(\u201c[T]he Commission is not required to make findings as to each fact presented by the evidenced\u201d).\nb.j Findings of Fact\nNext, plaintiff argues that the trial court erred in making findings of fact that were not supported by any competent evidence. Specifically, plaintiff challenges findings of fact #11, #13, #6, and #8. We disagree.\n\u201cIf there is any competent evidence supporting the Commission\u2019s findings of fact, those findings will not be disturbed on appeal despite evidence to the contrary.\u201d Graham, 188 N.C. App. at 758, 656 S.E.2d at 679.\nFirst, plaintiff challenges part of finding #11, which states:\n11. It is Dr. Dixon\u2019s opinion that plaintiff was not exposed to radiation above background levels, and therefore, that his employment did not contribute to his development of brain cancer.\nDixon testified that he measured the level of background radiation (radiation levels found in the general environment) outside the facility and next to the device while it emitted x-rays. Dixon stated that he \u201ccouldn\u2019t detect anything above the natural background when [he] made the measurement.\u201d He \u201cgot as close as [he] could with [his] detector, got nothing, and also made a measurement where people would normally be around called the bridle area.\u201d He \u201clooked around and nothing could be found.\u201d Based on his measurements, Dixon concluded that \u201cthe chances of any radiation above \u2014 significantly above background would be veiy, very small, if any. I couldn\u2019t measure any. And I got a lot closer than [plaintiff] would normally be if he were exposed.... In other words, it couldn\u2019t have produced this cancer.\u201d Clearly, finding #11 is supported by competent evidence.\nPlaintiff also challenges finding #13, which states, in relevant part,\n13. Dr. Costa\u2019s opinion that plaintiff\u2019s employment with defendant-employer placed him at an increased risk of developing brain cancer and that it was a significant contributing factor to his development of brain cancer was predicated on a belief that there was a \u201cgeneral leakage of radiation\u201d in the area in which plaintiff worked, an assumption which is not borne out by the testimony of Mr. Kesslick and Dr. Dixon. With regard to increased risk specifically, Dr. Costa testified, \u201cI imagine those machines give off radiation so I think that that [sic] would be higher than the general public ...\u201d When Dr. Costa testified on cross examination that \u201cthese machines tend to leak all over, . . .\u201d he offered no basis in fact for that opinion and went on to concede that he is not an expert in x-ray leaks. Dr. Costa did not know how much or how far radiation is emitted from the Honeywell/Measurex devices, nor did he have any information about how much radiation above background, if any, plaintiff might have been exposed to in his employment.\nCosta admitted that he did not know \u201cthe amount of any radiation that [plaintiff] might have been exposed to[.]\u201d He testified that plaintiffs \u201cexposure would be greater than the general population\u201d if plaintiff was merely \u201cnear\u201d the machine. However, he conceded that he did not know how far the devices emit radiation. Costa then testified that \u201c[t]hese machines tend to leak all over, so, you know, I just assumed that there was a . . . general leakage of radiation[.]\u201d This assertion contravenes Dixon\u2019s testimony that the \u201cx-ray tube is shielded against leakage\u201d and has a \u201cvery little chance of scatter.\u201d Furthermore, Costa stated that he is \u201cnot an expert\u201d with regard to radiation machines or x-ray leaks. The aforementioned testimony indicates that the Commission\u2019s finding #13 is supported by competent evidence.\nPlaintiff also contests a portion of finding #6, which states:\n6. During operation, it is impossible for any employee to get within ten feet of the Measurex device on Mills #1 and #4. An employee can get no closer than five feet to the sensor on Mills #2, #3, and #5.\nKesslick testified that a person \u201ccouldn\u2019t get within ten feet\u201d of the device on Mill #1 or #4. While Mills #2, #3, and #5 were in operation, Kesslick stated that an individual \u201ccouldn\u2019t get within five feet of [them].\u201d Thus, Kesslick\u2019s testimony provided the Commission with competent evidence to support finding #6.\nPlaintiff also argues that the Commission\u2019s finding of fact #8 is not supported by competent evidence because it relies on Kesslick\u2019s radiation badge readings to conclude that no excessive radiation levels emitted in the work area. Specifically, plaintiff argues that when Kesslick worked on the devices, the mills would be shut down such that the devices were unable to emit any radiation. Finding of fact #8 states:\n8. [according to Mr. Kesslick, the Honeywell/Measurex control system has multiple safety interlock devices that function to prevent the x-ray from emitting radiation when not in operation. These safety devices were checked at six-month intervals and were never found to be malfunctioning. Mr. Kesslick also wore a radiation dosimetry badge designed to record any type of radiation dose. During the time he worked at defendant-employer\u2019s plant, Mr. Kesslick never received a dosage of any recordable level of radiation.\nThe testimony indicates that Kesslick has worked for Honeywell-Measurex for twenty-five years as a maintenance control technician. One of his responsibilities is to conduct radiation safety tests on the devices every six months. When Kesslick performed these tests, he always wore a radiation badge, which is \u201cdesigned to record any type of radiation dose[.]\u201d During the testing, Kesslick ensured that amber lights were illuminated on the device. This indicated that power was supplied to the x-ray tube, allowing the device to produce x-rays. He also verified that a red lamp was on, which indicated that the device\u2019s shutter was open. When the shutter was open, x-rays were emitted. Thus, when Kesslick tested the devices, they emitted x-rays, and his radiation badge could appropriately measure any radiation exposure. Accordingly, the Commission\u2019s find of fact #8 is supported by competent evidence.\nc.~) Causation\nNext on appeal, plaintiff argues that the Commission erroneously relied on Dixon\u2019s testimony that plaintiffs \u201cemployment did not contribute to his development of brain cancer.\u201d We disagree.\nPlaintiff bears the burden of establishing the elements of an occupational disease pursuant to N.C. Gen. Stat. \u00a7 97-53(13). Gibbs v. Leggett & Platt, Inc., 112 N.C. App. 103, 107, 434 S.E.2d 653, 656 (1993). Plaintiff must show that the occupational disease is\n(1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be a causal connection between the disease and the [claimant\u2019s] employment.\nRutledge v. Taltex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359, 365 (1983) (citations and quotation omitted). Thus, the Commission must, in part, determine that plaintiffs employment \u201cexposed him to a greater risk of [disease] than members of the public generally[.]\u201d Perry v. Burlington Indus., Inc., 80 N.C. App. 650, 655, 343 S.E.2d 215, 219 (1986). Only once such a determination is made can the Commission decide whether the \u201coccupational exposure substantially contributed to development of the disease.\u201d Id. Once the issue of causation is reached, if an \u201cinjury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury.\u201d Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (citation omitted).\nHere, plaintiff mischaracterizes Dixon\u2019s testimony as an opinion about causation rather than testimony about the level of exposure to radiation. Plaintiff urges us to rule, pursuant to Click, that Dixon\u2019s testimony was not competent evidence because he is not an expert in providing medical causation testimony. However, we find Click inapplicable in the present case because the crux of Dixon\u2019s testimony related to whether plaintiff\u2019s exposure to the devices subjected him to higher radiation levels than the general public. Through this lens, Dixon\u2019s testimony was competent within the subject matter of his expertise in \u201cx-ray and physics with subspecialties in radiation shielding and radiation dosimetry.\u201d The Commission reflected Dixon\u2019s exposure testimony in its finding of fact, which states \u201c[i]t is Dr. Dixon\u2019s opinion that plaintiff was not exposed to radiation above background levels, and therefore, that his employment did not contribute to his development of brain cancer.\u201d Since the Commission found that plaintiff was not exposed to radiation above background levels, it did not need to rely on testimony as to whether such exposure substantially contributed to the development of plaintiff\u2019s brain cancer. Thus, the Commission properly relied on Dixon\u2019s testimony and concluded that plaintiff\u2019s theory was mere \u201cspeculation of exposure which is not supported by the greater weight of the record\u201d and \u201c[p]laintiff has failed to show that his condition ... was caused by exposure to radiation.\u201d\nd. j Compensable Claim\nPlaintiff argues that contrary to the Commission\u2019s decision, he met his burden as to each element for a compensable claim under N.C. Gen. Stat. \u00a7 97-53(13). Specifically, plaintiff argues that there was no competent evidence to support the Commission\u2019s finding that plaintiff was not at an increased risk for the development of cancer from radiation exposure compared to the general public. We disagree.\nA plaintiff is not required to prove that he was exposed to a specific quantity of a harmful agent to present a compensable claim. Gay v. J.P. Stevens & Co., Inc., 79 N.C. App. 324, 333-34, 339 S.E.2d 490, 496 (1986). However, a plaintiff must establish that \u201cthe substance [to which he was exposed] is one to which the worker has a greater exposure on the job than does the public generally, either because of the nature of the substance itself or because the concentrations of the substance in the workplace are greater than concentrations to which the public generally is exposed.\u201d Matthews v. City of Raleigh, 160 N.C. App. 597, 605-06, 586 S.E.2d 829, 836-37 (2003) (citation omitted).\nHere, the Commission considered all the evidence and assigned weight to each piece of evidence in making its final determination. Defendant\u2019s evidence showed the following: 1.) the device\u2019s shield against radiation leakage and has an extremely low probability of scatter; 2.) employees cannot stand within five feet of the devices; 3.) employees have no direct contact with the devices; 4.) Kesslick never received a measurable level of radiation during his testing of the devices; and 5.) the radiation levels next to the devices were no different than normal background radiation that is found in all environments. Furthermore, the Commission found that plaintiff did not meet his burden, not because of his own failure to quantify the degree of exposure, but because the Commission \u201cplac[ed] greater weight on the testimony of [Kesslick] and ... Dr. Dixon\u201d than plaintiff\u2019s witnesses. Thus, the evidence supports the Commission\u2019s finding that plaintiff did not have a greater exposure to radiation than the general public.\nIV. Conclusion\nIn sum, the Commission properly considered all of the evidence, made findings of fact that were supported by competent evidence, appropriately accepted evidence of causation, and correctly found that the claim was not compensable. Thus, we affirm the 10 May 2013 Opinion and Award of the Commission.\nAffirmed.\nJudge McGEE and Judge HUNTER, Robert C., concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff.", "Hedrick, Gardner, Kincheloe, & Garofalo, L.L.P., by Paul C. Lawrence, Zachary V. Renegar, andM. Duane Jones, for defendants." ], "corrections": "", "head_matter": "DOUGLAS SCOTT FILE, Employee-Plaintiff v. NORANDAL USA, INC., Employer, ACE USA, Carrier, Defendants\nNo. COA13-977\nFiled 18 February 2014\nWorkers\u2019 Compensation \u2014 occupational disease \u2014 brain cancer\u2014 denial of claim\nThe Industrial Commission did not err in a workers\u2019 compensation case by denying plaintiff\u2019s claim alleging that his close proximity to high energy machinery at his workplace exposed him to radiation that contributed to the development of brain cancer. The Commission properly considered all of the evidence, made findings of fact that were supported by competent evidence, appropriately accepted evidence of causation, and correctly found that the claim was not compensable. Further, the evidence supported the Commission\u2019s finding that plaintiff did not have a greater exposure to radiation than the general public.\nAppeal by Douglas Scott File from Opinion and Award entered 10 May 2013 by the North Carolina Industrial Commission. Heard in the Court of Appeals 7 January 2014.\nWallace and Graham, P.A., by Edward L. Pauley, for plaintiff.\nHedrick, Gardner, Kincheloe, & Garofalo, L.L.P., by Paul C. Lawrence, Zachary V. Renegar, andM. Duane Jones, for defendants." }, "file_name": "0397-01", "first_page_order": 407, "last_page_order": 415 }