File v. Norandal USA, Inc. , 232 N.C. App. 397 ( 2014 )

NO. COA13-977
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
DOUGLAS SCOTT FILE,
Employee-Plaintiff,
v. From N.C. Industrial
Commission,
No. 518257
NORANDAL USA, INC.,
Employer,
ACE USA,
Carrier, Defendants.
Appeal 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.
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, and M. Duane Jones, for
defendants.
ELMORE, Judge.
Douglas Scott File (plaintiff) appeals from the North
Carolina Industrial Commission’s denial of his claim for workers’
compensation benefits pursuant to N.C. Gen. Stat. § 97-53. After
careful review, we affirm the Opinion and Award of the Industrial
Commission.
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I. Background
On 28 April 2005, plaintiff filed a Form 18 “Notice of
Accident to Employer and Claim of Employee” 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’s employer, Norandal USA, Inc. (defendant), denied
plaintiff’s claim. Thereafter, the claim was assigned for hearing
before the Industrial Commission, and Deputy Commissioner J. Brad
Donovan denied plaintiff’s claim for workers’ 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 “prove that he suffer[ed]
from an occupational disease compensable within the meaning of
N.C. Gen. Stat. § 97-53(13)” and denied his claim. Plaintiff now
appeals to this Court from the Commission’s 10 May 2013 Opinion
and Award.
II. Facts
Defendant 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
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thin sheet of aluminum foil. The plant has five mills in
operation, and each utilizes a “Measurex” device (collectively
“the devices”), 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.
Plaintiff 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.
During plaintiff’s 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
plaintiff’s, who performed the same job responsibilities.
Plaintiff called Dr. Max Costa and Dr. David Schwartz as expert
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witnesses. They both opined that plaintiff’s employment increased
his risk of developing brain cancer due to radiation exposure from
the devices.
The devices were manufactured by Honeywell Corporation, and
Robert Kesslick was Honeywell’s on-site technician during
plaintiff’s employment. Kesslick maintained the devices’ 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 “never received a dosage of any recordable level of
radiation.” 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 “virtually non-existent[.]”
At the hearing, plaintiff introduced the on-site device
safety manual provided by Honeywell to defendant, an “Ionizing
Radiation Fact Book[,]” and the “BEIR Study” to contradict
defendant’s witnesses about the devices’ radiation levels and the
effects of radiation on humans.
III. Analysis
a.) Consideration of Evidence
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Plaintiff argues that the Commission erred by disregarding
documentary evidence introduced by him during Dixon’s testimony and
Kesslick’s deposition. We disagree.
Review of an Opinion and Award of the Industrial Commission “is
limited to consideration of whether competent evidence supports the
Commission’s findings of fact and whether the findings support the
Commission’s conclusions of law. This ‘court’s duty goes no further
than to determine whether the record contains any evidence tending
to support the finding.’” 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’s conclusions of law. Starr v. Gaston Cnty. Bd. of Educ.,
191 N.C. App. 301, 305, 663 S.E.2d 322, 325 (2008).
Before the Commission makes findings of fact, it “must 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.” Lineback v. Wake Cnty. Bd.
of Comm’rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997)
(citations omitted). Where the Commission’s Opinion and Award fails
to indicate that it considered testimony “relevant to the exact point
in controversy,” it “must be vacated, and the proceeding remanded to
the Commission to consider all the evidence, make definitive findings
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and proper conclusions therefrom, and enter the appropriate order.”
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 “require findings of fact regarding a report”
used during depositions. Hunt v. N. Carolina State Univ., 194 N.C.
App. 662, 666, 670 S.E.2d 309, 312 (2009).
In Hunt, the plaintiff argued on appeal that the Commission
erroneously ignored an opinion of an expert “by not considering or
mentioning [the expert’s] vocational report” 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’s report
during their testimony. Id. at 666, 670 S.E.2d at 312. Because the
Commission made specific findings as to the doctors’ testimony, this
Court ruled that “[i]t was not necessary for the Commission to make
further findings regarding the documents used during the
depositions.” Id.Similarly, plaintiff in this case introduced the safety manual,
the “Ionizing Radiation Fact Book[,]” and the “BEIR Study” to
contradict Dixon’s testimony about the devices’ radiation levels and
the effects of radiation on humans. The safety manual was also
discussed in detail during Kesslick’s deposition. While the
Commission did not specifically mention the documents in its Opinion
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and Award, it made detailed findings about both Dixon’s and Kesslick’s
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 “did not specifically find
that it was rejecting the evidence” in support of appellant’s
contention, “[s]uch negative findings are not required”); See also
Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 763,
656 S.E.2d 676, 682 (2008)(“[T]he Commission is not required to make
findings as to each fact presented by the evidence[.]”).
b.) Findings of Fact
Next, 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.
“If there is any competent evidence supporting the Commission’s
findings of fact, those findings will not be disturbed on appeal
despite evidence to the contrary.” Graham, 188 N.C. App. at 758, 656
S.E.2d at 679.
First, plaintiff challenges part of finding #11, which states:
11. It is Dr. Dixon’s opinion that plaintiff
was not exposed to radiation above background
levels, and therefore, that his employment did
not contribute to his development of brain
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cancer.
Dixon 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 “couldn’t detect anything above the natural background when
[he] made the measurement.” He “got 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.” He “looked around
and nothing could be found.” Based on his measurements, Dixon
concluded that “the chances of any radiation above –- significantly
above background would be very, very small, if any. I couldn’t
measure any. And I got a lot closer than [plaintiff] would normally
be if he were exposed. . . . In other words, it couldn’t have
produced this cancer.” Clearly, finding #11 is supported by competent
evidence.
Plaintiff also challenges finding #13, which states, in relevant
part,
13. Dr. Costa’s opinion that plaintiff’s
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 “general leakage of radiation” 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, “I imagine those machines
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give off radiation so I think that that [sic]
would be higher than the general public . . .”
When Dr. Costa testified on cross examination
that “these machines tend to leak all over, .
. .” 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.
Costa admitted that he did not know “the amount of any radiation
that [plaintiff] might have been exposed to[.]” He testified that
plaintiff’s “exposure would be greater than the general population”
if plaintiff was merely “near” the machine. However, he conceded
that he did not know how far the devices emit radiation. Costa then
testified that “[t]hese machines tend to leak all over, so, you know,
I just assumed that there was a . . . general leakage of radiation[.]”
This assertion contravenes Dixon’s testimony that the “x-ray tube is
shielded against leakage” and has a “very little chance of scatter.”
Furthermore, Costa stated that he is “not an expert” with regard to
radiation machines or x-ray leaks. The aforementioned testimony
indicates that the Commission’s finding #13 is supported by competent
evidence.
Plaintiff also contests a portion of finding #6, which states:
6. 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.
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Kesslick testified that a person “couldn’t get within ten feet”
of the device on Mill #1 or #4. While Mills #2, #3, and #5 were in
operation, Kesslick stated that an individual “couldn’t get within
five feet of [them].” Thus, Kesslick’s testimony provided the
Commission with competent evidence to support finding #6.
Plaintiff also argues that the Commission’s finding of fact #8
is not supported by competent evidence because it relies on Kesslick’s
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:
8. [a]ccording 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’s plant, Mr. Kesslick never received
a dosage of any recordable level of radiation.
The 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,
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he always wore a radiation badge, which is “designed to record any
type of radiation dose[.]” 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’s 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’s find of fact
#8 is supported by competent evidence.
c.) Causation
Next on appeal, plaintiff argues that the Commission erroneously
relied on Dixon’s testimony that plaintiff’s “employment did not
contribute to his development of brain cancer.” We disagree.
Plaintiff bears the burden of establishing the elements of an
occupational disease pursuant to N.C. Gen. Stat. § 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
(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’s] employment.
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Rutledge v. Tultex 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 plaintiff’s employment “exposed him to
a greater risk of [disease] than members of the public generally[.]”
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 “occupational exposure substantially
contributed to development of the disease.” Id. Once the issue of
causation is reached, if an “injury 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.” Click v. Pilot Freight Carriers, Inc., 300
N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (citation omitted).
Here, plaintiff mischaracterizes Dixon’s 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’s 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’s
testimony related to whether plaintiff’s exposure to the devices
subjected him to higher radiation levels than the general public.
Through this lens, Dixon’s testimony was competent within the subject
matter of his expertise in “x-ray and physics with subspecialties in
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radiation shielding and radiation dosimetry.” The Commission
reflected Dixon’s exposure testimony in its finding of fact, which
states “[i]t is Dr. Dixon’s 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.”
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’s brain cancer. Thus, the Commission properly relied
on Dixon’s testimony and concluded that plaintiff’s theory was mere
“speculation of exposure which is not supported by the greater weight
of the record” and “[p]laintiff has failed to show that his condition
. . . was caused by exposure to radiation.”
d.) Compensable Claim
Plaintiff argues that contrary to the Commission’s decision, he
met his burden as to each element for a compensable claim under N.C.
Gen. Stat. § 97–53(13). Specifically, plaintiff argues that there
was no competent evidence to support the Commission’s finding that
plaintiff was not at an increased risk for the development of cancer
from radiation exposure compared to the general public. We disagree.
A 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
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490, 496 (1986). However, a plaintiff must establish that “the
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.”
Matthews v. City of Raleigh, 160 N.C. App. 597, 605-06, 586 S.E.2d
829, 836-37 (2003) (citation omitted).
Here, the Commission considered all the evidence and assigned
weight to each piece of evidence in making its final determination.
Defendant’s evidence showed the following: 1.) the device’s 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 “plac[ed] greater
weight on the testimony of [Kesslick] and . . . Dr. Dixon” than
plaintiff’s witnesses. Thus, the evidence supports the Commission’s
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finding that plaintiff did not have a greater exposure to radiation
than the general public.
IV. Conclusion
In 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.
Affirmed.
Judge McGEE and Judge HUNTER, Robert C., concur.