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CANDY STREZINSKI, Employee, Plaintiff-Appellant, Cross-Appellee, v. CITY OF GREENSBORO, Employer, and KEY RISK MANAGEMENT SERVICES, Carrier, Defendants-Appellees, Cross-Appellants. NO. COA07-563 Filed: 18 December 2007 1. Workers' Compensation--hearing loss--causal link to occupation--not established

The Industrial Commission's conclusion in a workers' compensation case that a 911 dispatcher had not suffered an occupational hearing loss within the meaning of the statue was proper. Plaintiff did not establish a causal link between her hearing loss and her alleged workplace exposure. 2. Workers' Compensation--hearing loss--findings--supported by evidence

The findings of the Industrial Commission in a workers' compensation case involving hearing loss by a 911 dispatcher were supported by the evidence. 3. Workers' Compensation--deputy commissioner's findings--consideration by full Commission

The Industrial Commission did not err in a workers' compensation case in its consideration of the deputy commissioner's findings of fact. The full Commission may weigh the same evidence that was presented to the deputy commissioner and decide for itself the weight and credibility of the evidence. It may even strike the deputy commissioner's findings entirely. 4. Appeal and Error--notice of appeal--timeliness--direct appeal from agency--Rule 18

The Court of Appeals had no jurisdiction over defendant's appeal in a workers' compensation case where the notice of appeal was not timely under Rule 18 of the Rules of Appellate Procedure. This is a direct appeal from an administrative agency rather than a civil case, so that it is governed by Rule 18 rather than Rule 3. Appeal by plaintiff and cross-appeal by defendant from an opinion and award of the Full Commission of the North Carolina Industrial Commission entered 30 January 2007 by Commissioner Dianne C. Sellers. Heard in the Court of Appeals 15 November 2007. Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, for plaintiff-appellant/cross-appellee. Smith Moore, LLP, by Caroline appellees/cross-appellants. JACKSON, Judge. H. Lock, for defendants-

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Candy Strezinski ("plaintiff") appeals the denial of her workers' compensation claim by the Full Commission of the North Carolina Industrial Commission in its Opinion and Award dated 30 January 2007. The City of Greensboro ("defendant") appeals the

denial of costs and attorney fees in the same Opinion and Award. For the reasons stated below, we affirm in part and dismiss in part. Plaintiff began her employment with defendant as a

telecommunicator, or 911 dispatcher, on 1 July 1997.

Prior to

applying for a position with defendant, plaintiff had surgery to correct hearing loss which the doctor attributed to chronic ear infections. Upon her application for employment with defendant,

plaintiff's hearing was tested and the results demonstrated no hearing loss. At various times throughout her employment, plaintiff used three types of telephone headset. amplifier which was plugged Each type was routed through an a computer console at her

into

workstation. the amplifier.

Plaintiff had the ability to control the volume of

In her position, plaintiff was exposed to 911 callers yelling over her telephone headset, as well as police and fire sirens both through the headset when she was speaking directly with emergency personnel and over her computer console when she was using the headset to speak to 911 callers.

-3During the course of her employment, plaintiff continued to suffer from ear infections and other ailments. She also suffered

bilateral conductive hearing loss and mild sensorineural hearing loss in the left ear. She underwent surgery in 2003 to correct her Although the surgery eliminated all or

conductive hearing loss.

most of her conductive hearing loss in the left ear, her mild sensorineural hearing loss remained. Plaintiff saw her doctor for hearing problems on 17 March 2003, the alleged date of "injury," and first notified her

supervisor about her condition on 11 April 2003.

A senior claims

representative informed plaintiff on 22 April 2003 that her claim was denied. On 18 July 2003, plaintiff, appearing pro se, filed a

request that her claim be assigned for hearing with the Industrial Commission. Defendant responded 2 September 2003. Plaintiff's

attorney filed a notice of the alleged accident and claim to her employer on 11 November 2003. filed 14 November 2003. In September 2004, plaintiff was promoted to a supervisory position. Although her telecommunicator duties lessened, she still was required to use a headset and perform telecommunicator duties on an occasional basis, such as when the call center was shorthanded, extremely busy, or when she was relieving someone who was at lunch or on a break. At a hearing before a deputy commissioner on 25 January 2005, both plaintiff and the assistant director of communication An amended request for hearing was

testified.

It was not until after appearing before the Industrial

-4Commission that plaintiff sought medical opinions about her hearing loss. On 28 January 2005, plaintiff saw Dr. John Mundy ("Dr. Dr. "not

Mundy"), the doctor who had performed her 2003 surgeries. Mundy's impression was that plaintiff's audiogram was

suggestive of primary noise-induced hearing loss." plaintiff saw Dr. James Crossley ("Dr.

That same day, who had

Crossley"),

performed her 1997 surgery.

Dr. Crossley gave no opinion at that

time as to causation because he did not have the results of Dr. Mundy's audiogram. Dr. Mundy and Dr. Crossley were deposed 1 March and 7 March 2005, respectively. At Dr. Crossley's deposition, he

agreed that given plaintiff's greater loss of hearing in lower frequencies, her hearing loss was not likely due to noise exposure. The deputy commissioner filed an opinion and award on 1 May 2006, granting plaintiff's claim. Commission. Defendant appealed to the Full

On 30 January 2007, the Full Commission denied

plaintiff's claim and declined to award costs and attorney fees to defendant. Plaintiff filed her notice of appeal on 21 February

2007; defendant filed its notice of appeal on 5 March 2007. [1] Plaintiff first argues that the Full Commission applied the wrong standard of proof to an occupational disease hearing loss claim. We disagree.

This Court's review of an award from the Full Commission is "generally limited to two issues: (1) whether the findings of fact are supported by competent evidence, and (2) whether the Clark This

conclusions of law are justified by the findings of fact." v. Wal-Mart, 360 N.C. 41, 43, 619 S.E.2d 491, 492 (2005).

-5Court may set aside the Industrial Commission's findings of fact on appeal only when there is a complete lack of competent evidence to support them, because the commissioners are the sole judges of the credibility of the witnesses and the evidentiary weight to be given to their testimony. Young v. Hickory Bus. Furn., 353 N.C. 227, Findings of fact that are not See Johnson v.

230, 538 S.E.2d 912, 914 (2000).

challenged on appeal are binding on this Court.

Herbie's Place, 157 N.C. App. 168, 180, 579 S.E.2d 110, 118, disc. rev. denied, 357 N.C. 460, 595 S.E.2d 760 (2003). In addition,

findings of fact to which error is assigned but which are not argued in the brief are deemed abandoned. See Myers v. BBF

Printing Solutions, 184 N.C. App. 182, 194, 645 S.E.2d 873, 875-76 (2007) (citing N.C. R. App. P. 28(b)(6) (2007)). The Commission's Griggs v.

conclusions of law, however, are reviewed de novo.

Eastern Omni Constructors, 158 N.C. App. 480, 483, 581 S.E.2d 138, 141 (2003). Hearing loss that is caused by harmful noise in the employment is a compensable occupational disease pursuant to North Carolina's Workers' Compensation Act. N.C. Gen. Stat.

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