Vaughn v. INSULATING SERVICES

598 S.E.2d 629, 165 N.C. App. 469, 2004 N.C. App. LEXIS 1402
CourtCourt of Appeals of North Carolina
DecidedJuly 20, 2004
DocketNo. COA03-781.
StatusPublished
Cited by6 cases

This text of 598 S.E.2d 629 (Vaughn v. INSULATING SERVICES) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vaughn v. INSULATING SERVICES, 598 S.E.2d 629, 165 N.C. App. 469, 2004 N.C. App. LEXIS 1402 (N.C. Ct. App. 2004).

Opinion

STEELMAN, Judge.

Harry Eugene Vaughn ("plaintiff") appeals an opinion and award of the North Carolina Industrial Commission ("the Commission") denying his claim for compensation for an alleged occupational disease. For the reasons discussed herein, we affirm.

At the time of the hearing before the deputy commissioner, plaintiff was sixty-four years old. He completed his education through the eighth grade, and he received a GED during his military service. Plaintiff began working in the insulation industry in 1952. He continued working in the insulation business until 1959, at which time he joined the Army. The majority of the work plaintiff performed between 1952 and 1959 involved insulation containing asbestos. Plaintiff left the Army in 1980 and subsequently worked for various insulation companies.

Plaintiff began his employment with Insulating Services, Inc. ("defendant-employer") in 1983. He worked for defendant-employer until his retirement in February 2000. Plaintiff spent much of his time working at a facility in Charlotte that is now owned by B.F. Goodrich ("the Goodrich plant"). Plaintiff's duties for defendant-employer included installation of insulation for repair work and new construction at the Goodrich plant and other locations. Surveys conducted at the Goodrich plant in 1991, 1995 and 1998 indicated that there were areas within the plant where asbestos existed.

Plaintiff was examined on 12 April 1996 by Dr. Douglas G. Kelling, the examining physician for the Industrial Commission's Advisory Medical Committee. Plaintiff provided Dr. Kelling with a written employment histowhich *631indicated that he worked as an insulator from 1954 until 1982, during which time he was exposed to asbestos without benefit of a respirator.

Plaintiff did not mention any specific exposure to asbestos during his employment with defendant-employer. Dr. Kelling diagnosed plaintiff with asbestosis.

Plaintiff was also examined by Dr. Patrick Kelly, a Board certified pulmonologist, on 19 November 1999. Dr. Kelly noted that "[plaintiff] reports exposure to asbestos [during his employment with defendant-employer] although it is somewhat unclear exactly in what form." Plaintiff did not advise Dr. Kelly of any specific incidents of exposure to asbestos dust while working for defendant-employer. Dr. Kelly diagnosed plaintiff with asbestosis.

On 16 May 1997, plaintiff filed a Form 18B alleging asbestosis and seeking workers' compensation benefits from defendant-employer. The carriers are the insurance companies that provided worker's compensation insurance for employer during the course of plaintiff's employment. Defendants denied liability.

In an opinion and award filed 27 March 2003, the Commission denied plaintiff's claim for compensation. Plaintiff gave notice of appeal to this Court on 4 April 2003.

On appeal of an opinion and award by the Industrial Commission, this Court is "limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). Evidence tending to support the plaintiff's claim is to be viewed in the light most favorable to the plaintiff. Adams v. AVX Corp., 349 N.C. 676, 681, 509 S.E.2d 411, 414 (1998), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999). However, if there is any evidence in the record to support a finding of fact by the Commission, it is conclusive on appeal, even if there is substantial evidence to the contrary. Id. Moreover, the Commission is the sole judge of the credibility of witnesses and the weight to be given the evidence. Russell v. Lowes Prod. Distr., 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993).

In his first assignment of error, plaintiff argues the Commission used the incorrect legal standard to determine if plaintiff was injuriously exposed to asbestos while employed by Insulating Services. We disagree.

N.C. Gen.Stat. § 97-57 (2003) states:

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.

The statute goes on to explain the phrase "last injuriously exposed" in the context of asbestosis claims:

For the purpose of this section when an employee has been exposed to the hazards of asbestosis or silicosis for as much as 30 working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious but any less exposure shall not be deemed injurious....

Id. To recover under this statute, the plaintiff must show: (1) that he has a compensable occupational disease and (2) that he was "last injuriously exposed to the hazards of such disease" in defendant-employer's employment. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 88, 301 S.E.2d 359, 362 (1983).

The plaintiff contends that the Commission made four errors of law in coming to its conclusions. First, plaintiff argues the Commission improperly required him to produce scientific or medical evidence of exposure to asbestos for the relevant time period while in defendant's employ. Plaintiff is correct that there is no need for such expert testimony. Austin v. Continental General Tire, 141 N.C.App. 397, 404,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hinson v. Cont'l Tire The Ams.
Court of Appeals of North Carolina, 2019
Jacobs-Sams v. Duke Univ. Med. Ctr.
808 S.E.2d 175 (Court of Appeals of North Carolina, 2017)
Lovelace v. B & R Auto Serv., Inc.
798 S.E.2d 439 (Court of Appeals of North Carolina, 2017)
HAYWOOD COUNCIL ON AGING v. Mathis
664 S.E.2d 78 (Court of Appeals of North Carolina, 2008)
Coulter v. Catawba County Board of Education
657 S.E.2d 428 (Court of Appeals of North Carolina, 2008)
Payne v. Charlotte Heating & Air Conditioning
616 S.E.2d 356 (Court of Appeals of North Carolina, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
598 S.E.2d 629, 165 N.C. App. 469, 2004 N.C. App. LEXIS 1402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vaughn-v-insulating-services-ncctapp-2004.