Preview:

NO. COA01-1342 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2002

MARION I. HATCHER, Executor of the Estate of Norman Hatcher, Deceased Employee, Plaintiff, v. DANIEL INTERNATIONAL CORP., Employer, and KEMPER INSURANCE CO., Carrier, Defendants. Appeal by plaintiff from opinion and award entered 26 July 2001 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 22 August 2002.

Scudder & Hedrick, by Samuel A. Scudder, for plaintiffappellant. Marshall Williams & Gorham, L.L.P., by Ronald H. Woodruff, for defendant-appellees. MARTIN, Judge. Plaintiff appeals from an opinion and award of the Industrial Commission denying a claim for compensation and death benefits for the death of Norman Hatcher ("decedent-employee"). The record

reflects that Norman Hatcher filed an Industrial Commission Form 18, dated 3 December 1991, alleging that his exposure to asbestos while working for defendant-employer had resulted in "asbestosis and other asbestos-related lung diseases." He filed a Form 33,

dated 21 July 1994, requesting that the claim be assigned for a hearing. Norman Hatcher died on 25 April 1995 due to lung cancer

and the executor of his estate was substituted as plaintiff.

-2A deputy commissioner denied the claim on 27 March 2000 and plaintiff appealed to the Full Commission. By an opinion and award filed 26 July 2001, the Full Commission found that decedentemployee had been exposed to asbestos fiber and dust throughout his 46-year career as a millwright, carpenter, and welder, and that this exposure had "likely caused" both his asbestosis and lung cancer. The Commission also found that decedent-employee worked

for defendant-employer at a location insured by defendant-carrier for several different periods, the last one ending in 1976, during which he was exposed to asbestos fiber and dust in the workplace. In addition, the Commission found that, after retiring in 1978, decedent-employee returned to work at intervals. In particular,

plaintiff was employed by Mundy Industrial Contractors, Inc., ("Mundy") in 1988 and 1989. The Commission found that: [w]hile employed as a millwright for defendant-employer and then for Mundy at the General Electric plant through 1989, decedent was exposed to asbestos in the form of insulation. Decedent, in some instances, actually saw and consequently inhaled the asbestos dust while working for Mundy at the General Electric plant. It also found that decedent-employee's last employment in any capacity was with Mundy in 1989. The medical testimony indicated,

and the Commission found, that decedent-employee was not disabled by asbestosis but became disabled after he developed lung cancer. The Commission concluded that plaintiff's last injurious exposure to asbestos did not occur while he was employed by defendant Daniel International Corp. and denied his claim against defendants.

-3_________________________________ On appeal, plaintiff asserts the Commission erred in denying benefits for asbestosis and lung cancer because (1) there was not competent evidence in the record to support the Commission's findings regarding decedent-employee's last injurious exposure to asbestos and (2) the Commission applied the wrong legal standard in evaluating both claims. Appellate review of a decision of the

Industrial Commission is limited to a determination of whether there is competent evidence in the record to support the

Commission's findings of fact and whether those findings adequately support the conclusions of law and award. See Boles v. U.S. Air, If properly

Inc., 148 N.C. App. 493, 560 S.E.2d 809 (2002).

supported, the Commission's findings of fact are binding on appeal even though the evidence might also support contrary findings. See Locklear v. Stedman Corp., 131 N.C. App. 389, 508 S.E.2d 795 (1998). The Commission's conclusions of law are reviewable by the N.C. Gen. Stat.

Download 01-1342-6.pdf

South Carolina Law