Penegar v. United Parcel Serv.Â

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-404
Filed: 1 May 2018
North Carolina Industrial Commission, Nos. 14-769356 & 15-742389
CARRA JANE PENEGAR, Widow and Executrix of the Estate of JOHNNY RAY
PENEGAR, Deceased Employee, Plaintiff,
v.
UNITED PARCEL SERVICE, Employer, LIBERTY MUTUAL INSURANCE CO.,
Carrier, Defendants.
Appeal by Plaintiff and Defendants from an Opinion and Award entered 8
December 2016 by the Full North Carolina Industrial Commission. Heard in the
Court of Appeals 18 October 2017.
Wallace and Graham, P.A., by Michael B. Pross, for Plaintiff-Appellant.
Goodman McGuffey, LLP, by Jennifer Jerzak Blackman, for Defendants-
Appellants.
INMAN, Judge.
The North Carolina Industrial Commission (the “Commission”) did not err in
finding that an employee’s last injurious exposure to asbestos, which contributed to
his development of an occupational disease, occurred during the thirty years he
worked for his primary lifetime employer, based on the testimony of his former co-
workers and medical experts, and in the absence of any evidence that he was exposed
to asbestos at any subsequent job. Nor did the Commission err in calculating the
PENEGAR V. UNITED PARCEL SERV.
Opinion of the Court
employee’s average weekly wage based upon the employee’s earnings in the year
immediately preceding his diagnosis.
This case arises out of a workers’ compensation claim filed by Johnny Ray
Penegar (“Decedent”) against United Parcel Service (“Employer” or “UPS”) and
Liberty Mutual Insurance Company (“Carrier”) (collectively “Defendants”), asserting
compensation for Decedent’s mesothelioma. Carra Jane Penegar (“Plaintiff”),
Decedent’s wife and executrix of his estate, was substituted as Plaintiff following
Decedent’s death on 26 March 2015 during the pendency of this action. Both parties
appeal from the opinion and award of the Full North Carolina Industrial Commission,
which awarded Plaintiff compensation for all of Decedent’s medical expenses
associated with his diagnosis of mesothelioma, total disability compensation, burial
expenses, and death benefits.
Defendants argue that the Commission’s findings that Plaintiff was injuriously
exposed to asbestos while employed by UPS and that Plaintiff’s last injurious
exposure to asbestos occurred at UPS are unsupported by competent evidence.
Plaintiff argues that the Commission lacked jurisdiction to revise the Deputy
Commissioner’s calculation of the average weekly wage, and, assuming jurisdiction,
that the Commission’s calculation was incorrect. Additionally, Plaintiff asserts that
the Commission failed to address the issue, raised by Plaintiff on appeal from the
Deputy Commissioner’s opinion and award, of the appropriate maximum
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compensation rate to be applied to Decedent’s claim. After careful review, we affirm
the Commission’s finding that Decedent’s last injurious exposure to asbestos occurred
while Decedent was employed with UPS. We also affirm the Commission’s
recalculation of Decedent’s average weekly wage. We dismiss as moot Plaintiff’s
appeal from the Commission’s failure to address the Deputy Commissioner’s
calculation of the maximum compensation rate.
Factual and Procedural History
Decedent worked for UPS for thirty years, from 1967 until 1998, as a feeder
driver based in UPS’s Charlotte facility. Decedent’s duties included driving a tracker-
trailer to destinations within 200 miles and back each day. The Charlotte facility
was a large, open building approximately the size of two or three football fields, in
which the main area, referred to by employees as the “shop,” consisted of various
unseparated bays designated “tractor shop” or “package car shop” depending on what
vehicles were being repaired or maintained in each. Decedent walked through the
shop nearly every day to get from his truck to the employee locker room. Decedent
would often stop in the shop to talk with mechanics while they worked.
UPS employed its own mechanics to service the vehicles in its fleet during the
entirety of Decedent’s employment. Standard service tasks included maintaining and
repairing brakes. In any given week, between three and seven brake jobs were
performed in the shop. A typical brake job included banging the brake drums on the
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Opinion of the Court
ground and using compressed air to clear off the brake dust. The brake pads used by
UPS during Decedent’s employment contained asbestos, and would release asbestos
fibers into the air during brake jobs. Starting in the mid-1980s, UPS provided
protective masks to the mechanics, but did not at any time provide a protective mask
to Decedent.
Following his employment with UPS, from 1999 until 2002, Decedent drove a
transfer van for Union County. He also worked for a church and for Union County
Schools. Decedent continued to work part-time until 2012.
On 8 February 2013, Decedent was diagnosed with mesothelioma. Prior to his
death on 26 March 2016, Decedent filed a claim with the Commission alleging that
his mesothelioma developed as a result of asbestos exposure during his employment
with UPS.
Plaintiff presented testimony from two former UPS mechanics and two medical
experts. The mechanics testified that asbestos was present at the Charlotte facility.
The medical experts testified that exposure to asbestos in the UPS facility caused
Decedent to develop mesothelioma or contributed to him developing that disease.
Defendants presented two expert witnesses—an expert in industrial hygiene and an
expert in pathology.
The Deputy Commissioner issued an opinion and award finding that Decedent
was last injuriously exposed to asbestos, and the hazards of developing mesothelioma,
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Opinion of the Court
during his employment with UPS. The Deputy Commissioner awarded Plaintiff 500
weeks of wage compensation, calculated using Decedent’s average weekly wage from
1998 of $690.10, the last year he worked for UPS, and limited by the maximum
compensation rate for 1998, so that Plaintiff was awarded $532.00 per week. The
opinion and award also compensated Plaintiff for the medical expenses incurred
treating Decedent’s mesothelioma.
Plaintiff filed a motion for reconsideration of the maximum compensation rate,
arguing that the Deputy Commissioner should have used the maximum
compensation rate from 2015—the date of Decedent’s death. The Deputy
Commissioner denied Plaintiff’s motion.
Both parties appealed to the Full Commission. Defendants challenged a
majority of the Deputy Commissioner’s findings of fact and all but one of the
conclusions of law. Plaintiff challenged only the Deputy Commissioner’s calculation
of the appropriate maximum compensation rate.
The Commission, on 8 December 2016, issued its opinion and award finding
that Decedent’s last injurious exposure to asbestos, and the hazards of mesothelioma,
occurred while he was employed with UPS. The Commission recalculated and
substantially reduced Decedent’s average weekly wage, based on Decedent’s earnings
in the year prior to his diagnosis with mesothelioma, when he was no longer employed
by UPS. Both parties appealed.
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Opinion of the Court
Analysis
I. Standard of Review
“Appellate review of an award from the Industrial Commission is generally
limited to two issues: (i) whether the findings of fact are supported by competent
evidence, and (ii) whether the conclusions of law are justified by the findings of fact.”
Chambers v. Transit Mgmt., 360 N.C. 609, 611, 636 S.E.2d 553, 555 (2006) (citation
omitted). Unchallenged findings of fact are presumed to be supported by competent
evidence, and findings of fact supported by competent evidence are binding on appeal.
Chaisson v. Simpson, 195 N.C. App. 463, 470, 673 S.E.2d 149, 156 (2009). The
Commission’s conclusions of law are reviewed de novo. McRae v. Toastmaster, Inc.,
358 N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
II. Defendants’ Appeal
Defendants challenge the Commission’s findings that (1) the brakes used by
UPS at its Charlotte facility while Decedent was employed there contained asbestos
and (2) Decedent was at an increased risk of asbestos exposure during his
employment with UPS. Defendants also argue that Plaintiff failed to present
evidence that Decedent was not exposed to asbestos during his subsequent
employments, and therefore, the Commission’s finding that Decedent’s last injurious
exposure to asbestos occurred at UPS is also unsupported by the evidence. We
disagree.
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Opinion of the Court
A. Injurious Exposure
Defendants challenge the following findings of fact made by the Full
Commission:
9. Vernon Thomas Pond worked as a mechanic for
defendant-employer from 1972 to 2003 in the same facility
as decedent. Mr. Pond testified, based upon his work and
experience as a mechanic, that all brake shoes he worked
on while employed by defendant-employer contained
asbestos.
10. Bobby Bolin also worked for defendant-employer in
mechanics, mostly performing maintenance on tractors
and trailers. He began working for defendant-employer in
or about 1967. Mr. Bolin testified that the work
environment was “pretty dusty” and, even though he knew
brakes contained asbestos as early as 1967, he was not
aware that asbestos dust “was bad” until the mid-1980s.
Mr. Bolin testified that defendant-employer provided
mechanics with masks to protect against dust exposure in
the mid-1980s and restricted the blowing of dust in the
shop, but other employees walking through the shop were
not provided with protective masks.
...
12. Based upon the preponderance of the evidence in view
of the entire record, the Commission finds that the brakes
utilized by defendant-employer in the maintenance of its
trucks, tractors, and trailers contained asbestos. The
competent and credible evidence of record demonstrates
that such brakes contained asbestos from the mid-1960s
until at least the mid-1980s and, to the extent the brakes
continued to contain asbestos from the mid-1980s until
decedent’s retirement, decedent was not supplied with a
protective mask to curtail his exposure to asbestos fibers
while in the shop.
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...
23. Dr. Harpole testified that, although decedent did not
have “a giant exposure” to the hazards of asbestos like
someone who worked in an asbestos factory, being around
aerosolized asbestos in the air daily, or even every few days
over a period of years, led to significant asbestos exposure
for decedent when he walked through defendant-
employer’s shop.
24. Dr. Harpole testified that decedent’s mesothelioma was
caused by exposure to asbestos and, more likely than not,
that decedent’s work for defendant-employer caused or
significantly contributed to his development of
mesothelioma. He further testified that decedent’s
exposure to asbestos in his employment with defendant-
employer placed him at an increased risk, over that faced
by the general public, for developing mesothelioma.
25. Dr. Harpole’s opinions on causation and increased risk
were based on his understanding that, although decedent
did not perform brake work for defendant-employer, he did
walk through the shop daily or every few days over the
period of many years while brake jobs were being
performed and brake dust was aerosolized. Dr. Harpole
testified that if the mechanics were not “grinding” brakes,
then it would make the causation and increased risk less
likely, however, Dr. Harpole testified that, even if
defendant-employer’s mechanics did not grind brakes, the
use of compressed air aerosolized the asbestos fibers in the
brakes, which would have been the key to decedent’s
exposure.
26. From 1957 until 1960, decedent served in the U.S.
Navy as a machinist mate aboard a ship, the U.S.S.
Uhlmann, and was likely exposed to the hazards of
asbestos during that time. However, Dr. Harpole testified
that decedent likely had a protracted exposure over time,
which he explained “is much more of a risk for forming
cancer than one giant exposure.” Dr. Harpole further
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explained that the amount of plaque in decedent’s lungs
suggested a longer-term exposure than what decedent
would have experienced during his three to four years in
the Navy.
...
28. Dr. Barry Horn is a pulmonologist and critical care
specialist with experience evaluating and treating
asbestos-related diseases, including mesothelioma.
Plaintiff tendered Dr. Horn as an expert in pulmonary
medicine and asbestos-related diseases, including
mesothelioma, without objection from defendants. Dr.
Horn never personally evaluated decedent, but reviewed
the medical records and deposition testimony related to
this case and generated a written report summarizing his
conclusions and opinions.
29. Dr. Horn understood that decedent incurred asbestos
exposure in his employment with defendant-employer
when he walked through the maintenance areas of the shop
twice each work day, when he presented for work and then
when he left work at the end of his shift, over a period of
decades. Dr. Horn further understood that the brake work
in the shop decedent walked through did not involve
“grinding,” but replacement work that would release
asbestos fibers into the air for prolonged periods of time.
30. Dr. Horn testified that, “to get mesothelioma, it
requires remarkably little exposure to asbestos.” Dr. Horn
explained that, even though residual brake dust contains
anywhere between 1 and 10 percent of asbestos, that
amount is still significant enough to cause mesothelioma.
Dr. Horn testified, “When you blow out the dust, we’re
talking about a lot of fibers in the air, so even if it’s one
percent or less [than] one percent, we’re talking about a lot
of fibers now.”
31. Dr. Horn testified that an individual’s risk for
developing asbestos-related illness is dose dependent,
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meaning “[t]he more asbestos you inhale and retain in your
lungs, the more likely you’ll develop an asbestos-related
illness and that includes mesothelioma.” Dr. Horn
explained that, because decedent walked back and forth in
defendant-employer’s premises and breathed asbestos
fibers as a consequence of his job over a period of decades,
his exposure to asbestos was a substantial contributing
factor in his risk for developing mesothelioma.
32. Dr. Horn further testified that decedent’s employment
with defendant-employer placed him at an increased risk,
over that faced by the general public, for the development
of mesothelioma, because “the general public is not exposed
to levels of asbestos that would have existed in [defendant-
employer’s] facility” where brake repair was being
performed.
...
35. There was no question for Dr. Horn that the brake
linings defendant-employer used in the 1960s, ‘70s, and
‘80s contained chrysotile asbestos. As he testified, these
brake linings may also have contained the more potent
form of tremolite, or amphibole, asbestos. Dr. Horn
reviewed several publications during the course of his
deposition that concluded that, regardless of whether
brake linings contained amphibole asbestos, or only
chrysotile asbestos, exposure to the asbestos dust of either
form could cause mesothelioma, and he agreed with those
conclusions. Dr. Horn also explained that all government
agencies in the United States take the position that
chrysotile asbestos, alone, can cause mesothelioma, and
that the doses of chrysotile do not have to be extremely high
to do so.
36. As to “background” asbestos exposures, Dr. Horn
agreed with Dr. Harpole that everyone receives some level
of exposure, but testified that in order for him to conclude
that someone has asbestos-related disease, their asbestos
exposure has to be greater than background exposure.
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Opinion of the Court
37. Dr. Horn testified, and the Commission finds as fact,
that decedent was clearly exposed to hazardous levels of
asbestos during his Navy service, but decedent continued
to have asbestos exposure thereafter while working for
defendant-employer, and it was the latter exposure that
either caused or substantially contributed to decedent’s
development of mesothelioma.
...
47. Dr. Roggli testified that the brake products that were
likely in use by defendant-employer during decedent’s
employment contained chrysotile asbestos, but it was his
opinion that chrysotile asbestos from friction products
could not cause mesothelioma. Dr. Roggli did allow,
though, that exposure to chrysotile mined from Canada,
which generally is contaminated with tremolite (a more
potent amphibole type of asbestos) could cause
mesothelioma.
...
50. The Commission accords greater weight to the
causation and increased risk opinions of Dr. Harpole and
Dr. Horn over that of Mr. Agopsowicz and Dr. Roggli. Drs.
Harpole and Horn have extensive experience specializing
in the diagnosis and treatment of mesothelioma. Dr.
Harpole served as decedent’s treating physician, which
afforded him an opportunity to discuss directly with
decedent his lifetime exposures to asbestos, and to form his
opinions on causation and increased risk therefrom.
Further, the Commission finds Dr. Horn’s opinions are
well-reasoned, supported by research and a lifetime of
study in the field of pulmonology, and in accord with those
opinions of Dr. Harpole.
51. The Commission finds Dr. Roggli’s opinions regarding
an individual’s cumulative exposures to asbestos and risk
of developing mesothelioma contradictory when applied to
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Opinion of the Court
decedent specifically and, therefore, assigns little weight to
the expert opinions of Dr. Roggli. The Commission also
assigns little weight to the testimony of Mr. Agopsowicz,
who admits he is not qualified to render an opinion on
causation in connection with decedent’s development of
mesothelioma.
52. The preponderance of the evidence in view of the entire
record establishes that decedent was exposed to greater
than background levels of asbestos during his service in the
Navy in the 1950s and throughout his employment with
defendant-employer from 1967 through 1998.
53. Based on the preponderance of the evidence in view of
the entire record, the Commission finds that decedent’s last
injurious exposure to the hazards of asbestos occurred
during his employment with defendant-employer.
54. The preponderance of the evidence in view of the entire
record establishes that decedent’s work for defendant-
employer exposed him to a greater risk of contracting
mesothelioma over the general public, due to his above-
background levels of asbestos exposure in the course of his
employment, and that such exposure was a significant
contributing factor to his development of mesothelioma.
55. The preponderance of the evidence in view of the entire
record further establishes that mesothelioma caused or
significantly contributed to decedent’s death.
Defendants’ challenge to the weight the Commission assigned to testimony is beyond
our scope of review. See Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414
(1998) (“[O]n appeal, this Court ‘does not have the right to weigh the evidence and
decide the issue on the basis of its weight. The court’s duty goes no further than to
determine whether the record contains any evidence tending to support the finding.’
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” (quoting Anderson v. Lincoln Const. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274
(1965)). Instead, we review the challenged findings only to determine whether they
are supported by competent evidence. Adams, 349 N.C. at 681, 509 S.E.2d at 414.
The Commission’s findings are consistent with the witnesses’ testimonies and
therefore are supported by competent evidence. Mr. Pond testified that he worked
with UPS as a mechanic at the Charlotte facility from 1972 until 2003. He further
testified that it was his knowledge that all brake pads, including those used by UPS
during Decedent’s employment, contained asbestos, and that it was common practice
for the mechanics to knock the brake drums on the floor and to use compressed air to
clean the brake dust from the drums. Mr. Bolin testified that it was his
understanding that the brake pads used by UPS contained asbestos, and that it was
not until the 1980s that UPS began providing protective masks—and then only to the
mechanics. Both witnesses testified that they frequently saw Decedent in the shop
where these brake jobs were performed. Based on this testimony alone, the
Commission’s findings that (1) the brakes used by UPS during Decedent’s
employment contained asbestos and (2) Decedent was exposed to increased levels of
asbestos beyond that of the general public are supported by competent evidence.
The testimonies of Drs. Harpole and Horn, the medical experts called by
Plaintiff, also provide competent evidence to support the Commission’s findings of
fact. Defendants argue that their expert witnesses, Mr. Agopsowicz and Dr. Roggli,
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offered testimony that contradicts the testimony of Plaintiff’s witnesses. However,
as we mentioned above, it is not within this Court’s authority to reweigh the evidence
and credibility of the witnesses. The Commission explicitly found that Plaintiff’s
expert witnesses presented more credible testimony than Defendants’ expert
witnesses, and, because the Commission is the sole judge of credibility, the
Commission’s findings must stand. See, e.g., Adams, 349 N.C. at 680, 509 S.E.2d at
413 (“The Commission is the sole judge of the credibility of the witnesses and the
weight to be given their testimony.” (citation omitted)).
Accordingly, we hold that the Commission’s findings that while employed with
UPS, Decedent was exposed to asbestos at levels above those of the general public
and was injured as a result are supported by competent evidence.
B. Last Injurious Exposure
Defendants also challenge the Commission’s finding that Decedent’s last
injurious exposure occurred while Decedent was employed by UPS.
“In any case where compensation is payable for an occupational disease, the
employer in whose employment the employee was last injuriously exposed to the
hazards of such disease, and the insurance carrier, if any, which was on the risk when
the employee was so last exposed under such employer, shall be liable.” N.C. Gen.
Stat. § 97-57 (2015) (emphasis added). The North Carolina Supreme Court, in
Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983), explained that “[t]he
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statutory terms ‘last injuriously exposed’ mean ‘an exposure which proximately
augmented the disease to any extent, however slight.’ ” 308 N.C. at 89, 301 S.E.2d at
362-63 (citation omitted). Therefore, the Court concluded that to succeed, a plaintiff
need only show: “(1) that she has a compensable occupational disease and (2) that she
was ‘last injuriously exposed to the hazards of such disease’ in [the] defendant’s
employment.” Id. at 89, 301 S.E.2d at 362.
The Commission found that “[t]here is no evidence of record that any of
[Decedent’s subsequent] jobs exposed decedent to the hazards of asbestos.”
Defendants concede that, as written, this finding is factually true. We note that this
finding, in turn, is logically consistent with the Commission’s finding that Decedent’s
last injurious exposure to asbestos occurred at UPS—because if there is no evidence
of later exposure, the last exposure must necessarily have occurred at UPS.
Defendants argue that it is precisely because there is no evidence of record
regarding Decedent’s asbestos exposure at his subsequent employment that the
Commission erred in finding that “decedent’s last injurious exposure to the hazards
of asbestos occurred during his employment with defendant-employer.” Defendants
argue that Plaintiff failed to carry the burden to present evidence that Decedent was
not exposed to asbestos in his employment subsequent to his employment with UPS.
Defendants’ argument is premised on the theory that in order for the
Commission to find that Decedent’s last exposure was at UPS, it must first find, based
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Opinion of the Court
on specific evidence presented by Plaintiff, that Decedent was not later exposed at his
subsequent employers. We reject this argument based upon precedent and the
legislative purpose of the Workers’ Compensation Act.
Our courts have consistently held that the Workers’ Compensation Act “should
be liberally construed so that the benefits under the Act will not be denied by narrow,
technical or strict interpretation.” Stevenson v. City of Durham, 281 N.C. 300, 303,
188 S.E.2d 281, 283 (1972) (citation omitted). Moreover, the purpose of the “last
injurious exposure” doctrine is “to eliminate the need for complex and expensive
litigation of the issue of relative contribution by each of several employments to a
plaintiff’s occupational disease.” City of Durham v. Safety Nat. Cas. Corp., 196 N.C.
App. 761, 764, 675 S.E.2d 393, 395 (2009). The doctrine provides a plaintiff with a
reduced burden by requiring only a showing that the occupational exposure
augmented a disease, “however slight[,]” as opposed to demonstrating how much each
exposure resulted in the disease. See Rutledge, 308 N.C. at 89, 301 S.E.2d at 362.
Defendants’ assertion that the Commission’s finding is not supported by the
evidence misreads the Commission’s finding. The Commission found that there was
no evidence that Decedent was exposed to asbestos during his subsequent
employment, not, as Defendants argue, that there was no evidence regarding
Decedent’s exposure during his subsequent employment. This distinction, however
minor, is essential, as we are bound by the Commission’s findings when those findings
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are supported by the evidence in the record. Here, the Commission’s finding that
there is no evidence that Decedent was exposed to asbestos is supported by the record
because there is no evidence that he was exposed to asbestos. Moreover, this finding
supports the Commission’s finding that Decedent’s last injurious exposure to asbestos
was while he was employed by UPS.
In sum, we hold that in the absence of evidence that an employee was exposed
to a hazardous material at subsequent employers, the burden shifts to the employer
to produce some evidence of a subsequent exposure. Shifting the burden of production
does not shift the burden of proof. But before the Commission can find that an
employee was exposed to a hazardous condition at some subsequent employment, the
record must include some evidence of exposure in that employment.
In Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 524 S.E.2d 368 (2000), the
plaintiff worked as a typist from 1988 until 1993 for the defendant-employer, during
which time she began suffering from symptoms associated with overuse tendinitis of
the arms. Id. at 352, 524 S.E.2d 370. The plaintiff resigned from her position and
worked in several subsequent jobs, including at a department store, a fast food
restaurant, and a gas and convenience store. Id. at 352-53, 524 S.E.2d at 370. Our
Court held that the evidence in the record—the plaintiff’s job duties, medical evidence
indicating a worsening of her condition, and the plaintiff’s own testimony that her
symptoms were aggravated by her subsequent jobs—supported the Commission’s
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finding that her last injurious exposure to carpal tunnel syndrome occurred while she
worked with her subsequent employers, not while she worked with the defendant-
employer. Id. at 359-60, 524 S.E.2d at 374.
In contrast to Hardin, this Court in an unpublished decision, Richardson v.
PCS Phosphate Co., 238 N.C. App. 198, 768 S.E.2d 64, 2014 WL 714977 (2014)
(unpublished), affirmed an opinion and award of the Commission finding that a
plaintiff’s last injurious exposure to asbestos, which resulted in his diagnosis of
mesothelioma, occurred during his time with the defendant-employer (“PCS”) and not
at his subsequent employment (“East Group”). The plaintiff worked for the
defendant-employer, a phosphate products manufacturer, as a concentrator engineer
before eventually rising to the rank of assistant mine manager. Id. at *1-*2. The
only finding by the Commission addressing the plaintiff’s subsequent employer
stated:
After retiring from PCS, [the] [p]laintiff began working for
the East Group in 1995 on the same PCS job site. [The]
[p]laintiff testified that in this position, he performed the
same job duties as he had while employed as Assistant to
the Mine Manager. [The] [p]laintiff does not believe that
he was injuriously exposed to the hazards of asbestos while
working for the East Group.
Id. at *8. Our Court explained that “[b]esides [the] plaintiff’s own testimony that he
performed essentially the same work at the same locations, there was no evidence
presented as to whether asbestos was still present in the areas that [the] plaintiff
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Opinion of the Court
visited while working for the East Group, whether there was asbestos maintenance
or abatement projects going on after 1995, whether [the] plaintiff’s activities in those
same areas could have exposed him to asbestos after 1995, and no expert medical
evidence linking [the] plaintiff’s work at the East Group with his mesothelioma.” Id.
at *8. This Court held, in the absence of evidence “establishing the nexus between
[the] plaintiff’s continuing work at the PCS facility for the East Group and exposure
to asbestos[,] . . . we are unable to conclude that the Full Commission erred in failing
to find that [the] plaintiff’s ‘last injurious exposure’ occurred while he was working
for the East Group.” Id. at *8. Defendants’ appeal here, as the appeal in Richardson,
challenges the Commission’s finding that a plaintiff’s last injurious exposure occurred
with the defendant-employers. While Richardson is not binding authority, given the
paucity of decisions regarding the issue before us, its reasoning is persuasive.
The purpose of the Workers’ Compensation Act and our precedent support the
Commission’s finding that, in the absence of evidence that Decedent was exposed to
asbestos or any other substance causing mesothelioma during his subsequent
employment, Decedent’s last injurious exposure to asbestos occurred at UPS. To
require a plaintiff to present affirmative evidence that no exposure existed during all
subsequent employment would impose a burden in stark conflict with purpose of the
last injurious exposure doctrine and the general purpose of the Workers’
Compensation Act.
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Opinion of the Court
Here, Plaintiff provided competent evidence that Decedent was injuriously
exposed to asbestos during his employment with UPS and that his exposure
contributed to his development of mesothelioma. While there is no affirmative
evidence proving a lack of exposure to asbestos in his subsequent employment,
nothing in the evidence regarding his subsequent employment—as a van driver and
a church and school employee—suggests any inference to the contrary. Without any
such evidence, it would have been error for the Commission to find that Decedent was
later exposed.
We recognize that it is a plaintiff’s burden to prove his claim is compensable,
see Henry v. A.C. Lawrence Leather Co., 231 N.C. 477, 479, 57 S.E.2d 760, 761 (1950),
and hold that under the facts presented, Plaintiff has done so. Based on the record,
and in the absence of any evidence establishing a nexus between Plaintiff’s
subsequent employment and asbestos exposure, we conclude the Commission did not
err in finding that Plaintiff’s last injurious exposure to asbestos was at UPS.
III. Plaintiff’s Appeal
Plaintiff argues that the Commission lacked jurisdiction to revise a
determination made by a Deputy Commissioner in an opinion and award, when that
issue was not raised by either party, and, assuming jurisdiction, that the Commission
erred in calculating Plaintiff’s average weekly wage and maximum compensation
rate. We hold the Commission had jurisdiction and properly calculated Plaintiff’s
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PENEGAR V. UNITED PARCEL SERV.
Opinion of the Court
average weekly wage, but did not make a determination as to the proper maximum
compensation rate.
A. Jurisdiction to Revise an Opinion and Award
It is well-established in North Carolina that the Industrial Commission has
the authority to review, modify, adopt, or reject the findings of fact found by a deputy
commissioner. Brewer v. Powers Trucking Co., 256 N.C. 175, 182, 123 S.E.2d 608,
613 (1962). The Commission also has “the power to review the evidence, reconsider
it, receive further evidence, rehear the parties or their representatives, and, if proper,
to amend the award . . . .” Id. at 182, 123 S.E.2d at 613 (emphasis added). Inherent
in these powers, our courts have long recognized the Full Commission’s authority to
“strike [a] deputy commissioner’s findings of fact even if no exception was taken to
the findings.” Keel v. H & V Inc., 107 N.C. App. 536, 542, 421 S.E.2d 362, 367 (1992).
Plaintiff argues that this Court’s recent holding in Reed v. Carolina Holdings,
__ N.C. App. __, 796 S.E.2d 102 (2017), restricts the scope of issues the Commission
may address on appeal from a deputy commissioner’s opinion and award. In Reed,
we held that pursuant to Rule 701 of the North Carolina Industrial Commission we
were without jurisdiction to address an argument raised, for the first time on appeal,
by the defendant. Id. at __, 796 S.E.2d at 108. This holding, however, refers only to
this Court’s jurisdiction to hear arguments not asserted, or ruled upon, below; it does
not address the Commission’s authority to review, modify, or amend a deputy
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Opinion of the Court
commissioner’s opinion and award when an issue is not raised by the parties. The
Commission’s authority under the Rules promulgated by the Commission has
previously been addressed by the North Carolina Supreme Court. In Brewer, the
Court explained that “these rules do not limit the power of the Commission to review,
modify, adopt, or reject the findings of fact found by a Deputy Commissioner . . . .”
256 N.C. at 182, 123 S.E.2d at 613. Accordingly, we hold that the Commission was
well within its authority and therefore had jurisdiction to amend an aspect of the
Deputy Commissioner’s opinion and award, even those not raised by either party on
appeal.
B. Average Weekly Wage
“The determination of the plaintiff’s ‘average weekly wages’ requires
application of the definition set forth in the Workers’ Compensation Act, and the case
law construing that statute[,] and thus raises an issue of law, not fact.” Boney v.
Winn Dixie, Inc., 163 N.C. App. 330, 331-32, 593 S.E.2d 93, 95 (2004) (internal
quotation marks and citations omitted). We therefore review the Commission’s
calculation of Decedent’s average weekly wages de novo. Id. at 331-32, 593 S.E.2d at
95.
Section 97-2(5) of the North Carolina General Statutes “ ‘provides a hierarchy’
of five methods of computing the average weekly wages[.]” McAninch v. Buncombe
Cty. Schools, 347 N.C. 126, 130, 489 S.E.2d 375, 378 (1997) (citation omitted). “The
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Opinion of the Court
five methods are ranked in order of preference, and each subsequent method can be
applied only if the previous methods are inappropriate.” Tedder v. A & K Enterprises,
238 N.C. App. 169, 174, 767 S.E.2d 98, 102 (2014) (citation omitted). Section 97-2(5)
states in relevant part:
[Method 1] “Average weekly wages” shall mean the
earnings of the injured employee in the employment in
which the employee was working at the time of the injury
during the period of 52 weeks immediately preceding the
date of the injury, . . . divided by 52;
...
[Method 2] if the injured employee lost more than seven
consecutive calendar days at one or more times during such
period, although not in the same week, then the earnings
for the remainder of such 52 weeks shall be divided by the
number of weeks remaining after the time so lost has been
deducted.
...
[Method 3] Where the employment prior to the injury
extended over a period of fewer than 52 weeks, the method
of dividing the earnings during that period by the number
of weeks and parts thereof during which the employee
earned wages shall be followed; provided, results fair and
just to both parties will be thereby obtained.
...
[Method 4] Where, by reason of a shortness of time during
which the employee has been in the employment of his
employer or the casual nature or terms of his employment,
it is impractical to compute the average weekly wages as
above defined, regard shall be had to the average weekly
amount which during the 52 weeks previous to the injury
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Opinion of the Court
was being earned by a person of the same grade and
character employed in the same class of employment in the
same locality or community.
...
[Method 5] But where for exceptional reasons the foregoing
would be unfair, either to the employer or employee, such
other method of computing average weekly wages may be
resorted to as will most nearly approximate the amount
which the injured employee would be earning were it not
for the injury.
N.C. Gen. Stat. § 97-2 (2015). “The final method, as set forth in the last sentence,
clearly may not be used unless there has been a finding that unjust results would
occur by using the previously enumerated methods.” McAninch, 347 N.C. at 130, 489
S.E.2d at 378 (citation omitted).
The first three methods calculate the average weekly wages for an employee
based on the employee’s actual employment with the employer in the 52-week time
period immediately preceding the date of injury. Here, the Commission determined,
and we agree, that these methods are inappropriate because of the length of time
between Decedent’s employment and his diagnosis. The Commission found that
Decedent’s date of injury1 was 8 February 2013, and that Decedent had not worked
for UPS at any time in the 52 weeks immediately prior this date.
1 The Commission correctly notes that “the date of diagnosis” with regard to an occupational
disease constitutes the “date of injury[,]” for the purposes of calculating average weekly wages. See
Pope v. Manville, 207 N.C. App. 157, 168-69, 700 S.E.2d 22, 30 (2010).
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Opinion of the Court
Regarding the fourth method, the Commission found that “[t]he record
contains no evidence by which calculation of decedent’s average weekly wage can be
made . . . .” This determination makes sense because the fourth method applies to
employees who worked for only a short time for the defendant employer. Decedent
worked for UPS for thirty years and had not worked for them in the fifteen years
immediately prior to his diagnosis.
The Commission then found, consistent with the requirements of McAninch,
347 N.C. at 130, 489 S.E.2d at 378, that because “the first four statutory methods for
calculating average weekly wage are either inapplicable or would produce a result
that is not fair and just to both parties . . . the Commission finds that it is appropriate
to use the fifth method to calculate average weekly wage.” We agree with the
Commission’s findings.
The Commission, in applying the fifth method, sought to determine a way to
produce a result that “most accurately reflects the wages decedent would have
continued to earn, but for his diagnosis with mesothelioma, and [that] is fair and just
to both parties.” The Commission looked at Decedent’s earnings for 2012 from his
employment with Union County—$4,272.92—which were evidenced by Decedent’s
Social Security Earnings Statement.2 The Commission then divided this amount by
52 weeks and obtained an average weekly wage of $82.17 with a resulting
2 Decedent’s Social Security Earnings Statement includes Decedent’s earnings for the years
prior to his diagnosis, which indicate a decline in earing from 2008, $9,774.78, to 2012, $4,272.92.
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Opinion of the Court
compensation rate of $54.78 for Decedent. Decedent’s Social Security Earnings
Statement is competent evidence that supports the Commission’s findings, and
therefore, we are bound by such findings on appeal.
Plaintiff argues that this calculation of average weekly wages is improper
because it does not reflect Decedent’s 2012 part-time post-retirement earning
capacity. We reject this argument. Section 97-2 explicitly provides that the weekly
calculation using the fifth method should “most nearly approximate the amount
which the injured employee would be earning were it not for the injury[,]” not what
the injured employee could be earning. N.C. Gen. Stat. § 97-2. Because there was
evidence in the record of Decedent’s actual earnings in the years prior to his
diagnosis, the Commission’s findings are supported by such evidence, and we affirm
the Commission’s calculation of Decedent’s average weekly wages.
C. Maximum Compensation Rate
It is well established in North Carolina that “it is the duty and responsibility
of the full Commission to decide all of the matters in controversy between the parties.”
Hurley v. Wal-Mart Stores, Inc., 219 N.C. App. 607, 613, 723 S.E.2d 794, 797 (2012)
(internal quotation marks and citation omitted) (emphasis added). Plaintiff’s appeal
to the Full Commission challenged the Deputy Commissioner’s determination of the
maximum compensation rate, but the Commission did not decide that issue.
However, the average weekly wage calculated by the Commission fell far below the
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Opinion of the Court
maximum compensation rate, so that Plaintiff’s award was not subject to any
limitation by the latter. Because we affirm the Commission’s calculation of the
average weekly wage, and because the calculated average weekly wage falls far short
of any of the argued maximum compensation rates, Plaintiff’s appeal of the issue is
moot. Accordingly, we dismiss as moot Plaintiff’s appeal of the maximum
compensation rate.
Conclusion
For the foregoing reasons, we affirm the Commission’s finding of fact that
Decedent’s last injurious exposure to asbestos occurred while Decedent was employed
by UPS and we affirm the Commission’s recalculation of Decedent’s average weekly
wage. We dismiss as moot Plaintiff’s appeal regarding the determination of the
maximum compensation rate.
AFFIRMED IN PART AND DISMISSED IN PART.
Judges ELMORE and DIETZ concur.
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