Dеfendants appeal from the Opinion and Award of the Industrial Commission filed on 2 March 2006, which granted workers’ compensation benefits and attorney’s fees to plaintiff’s estate for permanent and total disability due to asbestosis. We affirm.
I. Factual Background
Plaintiff testified under oath as follows: Hе began work for defendant-employer in 1969 as a field installer, which primarily involved the installation of asbestos tiles in ceilings. He later became a superintendent for approximately three to four years, worked as a salesman, and was a part owner for thе last four or five years of his employment with Southern Flooring and Acoustical Co., Inc. (“Southern Flooring”). Plaintiff retired from his position with defendant-employer in 1983 and started his own company, Gainey Acoustical.
As owner of Gainey Acoustical, plaintiff’s primary duty was soliciting contractors in order to procure orders for his company. He retired from Gainey Acoustical in November 1995, because he “just got tired and didn’t want to work.” He was having breathing problems at the time of his retirement, although he admitted that no doctor ever advised him to stop working. Plaintiff alone made the decision to retire because it was what he wanted to do. In addition, plaintiff’s interrogatory answers state that his “retirement was in no way related to any medical problem. Plaintiff was age 60 in 1995 and decided it was time to retire.” Plaintiff testified that at the time of the 30 November 2000 hearing he was having difficulty breathing, and that he “gave out” when climbing steps or walking. He also testified
that he continued to play golf, could walk a mile on level ground and had been walking for exercise for approximately ten years. Plaintiff testified that he was first diagnosed with
Additional record evidence was offered by physicians who treated plaintiff. Dr. Robert A. Rostand was the panel physician appointed by the North Carolina Industrial Commission to examiné plaintiff. Dr. Rostand testified that plaintiff had asbestosis. A letter written by Dr. Rostand on 3 December 1999 stated that plaintiff had “classic asbestos related, disease,” proximately caused by “occupational exposure to asbestos while employed by Southern Flooring and Acоustical,” and that plaintiff was “not anticipated [to] return to gainful employment.” However, the letter stated that Dr. Rostand was “unable to date the onset of [plaintiffs] pulmonary problem.”
Furthermore, the record includes deposition testimony from Drs. Frederick U. Vorwald and Sеver Surdulescu. Dr. Vorwald testified that plaintiff had asbestosis, and that plaintiff was “physically disabled from gainful employment.” Dr. Surdulescu testified that “it would be very difficult, if not impossible [for plaintiff] to do any job that require [d] any amount of physical activity” and that he recommended plaintiff usе oxygen whenever he walked. Plaintiff died on 9 May 2005.
II. Procedural History
On 8 April 1999, plaintiff filed Form 18B with the Industrial Commission, seeking benefits for an occupational disease resulting from exposure to asbestos during his employment with defendant Southern Flooring, where he was employed from 1969 to April, 1983. Defendants denied that plaintiff was entitled to benefits, contending that he did “not have a compensable occupational disease, and that he was not last injuriously exposed to the hazards of any such disease while employed by defendant-employer.” The claim was initially heard before Deputy Commissioner W. Bain Jones on 30 November 2000. By an Opinion and Award filed on 30 March 2001 (“2001 Opinion and Award”), the deputy commissioner concluded that “plaintiff [had] failed to prove by the greater weight of the evidence that he [had] contracted asbestоsis as a result of his employment with defendant-employer,” and his claim was therefore denied.
Plaintiff appealed the 2001 Opinion and Award to the Full Commission. The Full Commission reviewed plaintiff’s claim on 12 March 2003. On 2 September 2003, the Commission reversed the 2001 Opinion and Award and entered an Opinion and Award (“2003 Opinion and Award”) which concluded that “plaintiff was last injuriously exposed to asbestos during his employment with Southern Flooring and that plaintiff had contracted asbestosis as a result of that exposure.” The Commission concluded that plaintiff was entitled to mеdical compensation as a result of his asbestosis and remanded the matter to a deputy commissioner for immediate hearing and Opinion and Award regarding the disability of plaintiff as a result of his asbestosis.
On 22 September 2004, plaintiffs claim as to disability was heard by Deputy Commissiоner George T. Glenn, II, upon remand by the Full Commission. At the 2004 hearing no additional lay testimony was offered, and the only new evidence presented was the deposition testimony of plaintiff’s treating physicians, Dr. Sever Surdulescu and Dr. Frederick Vorwald. After the hearing, Deputy Commissioner Glenn entered an Opinion and Award on 16 June 2005 (“2005 Opinion and Award”) which concluded that plaintiff had been totally disabled since January 1995 and that he was entitled to compensation from that date forward at the rate of $481.24 per week. On 28 June 2005, defendants filed notice of appeal to the Full Commission from the 2005 Opinion and Award.
The Full Commission reviewed plaintiff’s claim on 8 November 2005. In its Opinion and Award filed 2 March 2006 (“2006 Opinion and Award”), the Commission found that (1) plaintiff had received medical treatment for asbestosis-related problems; (2) plaintiff suffered from breаthing problems as a result of asbestosis; (3) plaintiff had suffered from asbestosis as a result of his employment with defendant-employer and the disease had rendered him unable to perform gainful employment since 3 December 1999; (4) plaintiff’s breathing problems severely impairеd his daily activities; (5) as a result of asbestosis, it was difficult, if not impossible, for plaintiff to do any job that required any amount of
III. Findings of Fact
Defendants assign error to the following findings of the Commission: (1) plaintiff had suffered from asbestosis as a result of his employment with defendant-emplоyer and the disease had rendered him unable to perform gainful employment since 3 December 1999; and (2) plaintiff stopped working in 1995 as a result of his dis-. ease and plaintiffs asbestos-related condition continued to deteriorate until his death. We determine that the first contested finding of fact is supported by competent evidence, and is therefore binding on appeal, but the second contested finding is not supported by competent evidence, and therefore not binding on appeal.
Except for jurisdictional questions, fаilure to assign error to the Commission’s findings of fact renders them binding on appellate review.
Cornell v. Western & S. Life Ins. Co.,
Defendants are correct that the evidence does not support a finding that plaintiff stopped working in 1995 because of his medical condition, or that plaintiff’s condition continued to worsen until his death. There is evidence of plaintiff’s declining health leading up to 1995, but neither plaintiff’s testimony nor his answers to interrogatories support a finding that hе stopped working for this reason. In fact, in answer to an interrogatory regarding this issue, plaintiff stated unequivocally that his “retirement was in no way related to any medical problem. Plaintiff was age 60 in 1995 and decided it was time to retire.” Further, there was no evidence before the Commission as to plaintiffs condition after Dr. Surdulescu’s last note in evidence dated 12 October 2004 until plaintiffs death on 9 May 2005.
However, there is competent evidence to support the other challenged finding of fact. The purpose of Dr. Rostand’s examination оf plaintiff was to determine if he suffered from asbestosis and to determine the extent of his disease. Defendants quibble in their brief over the wording of portions of Dr. Rostand’s report, but considering his report and testimony in its entirety, Dr. Rostand’s evidence does support the Commission’s finding of fаct that plaintiff suffered from asbestosis as a result of his employment with defendant-employer. The possibility
In addition, Dr. Vorwald began treating plaintiff in 1996, prior to Dr. Rostand’s panel examination of plaintiff, and the history of plaintiff’s actual treatment with Dr. Vorwald also supports the findings of Dr. Rostand’s examination. Likewise, although plaintiff did not begin his treatment with Dr. Surdulescu until 2003, the history of this treatment also supports Dr. Rostand’s 1999 findings, since plaintiff’s medical course did in fact continue after 1999 as Dr. Rostand had predicted that it would based on his diagnosis. For example, Dr. Rostand concluded in 1999 that plaintiff would in the future “rеquire continued medical surveillance for his asbestos related pulmonary condition,” a conclusion affirmed by the testimony and medical records of Drs. Vorwald and Surdulescu, which both demonstrate that plaintiff’s condition continued to worsen from 1999 until the date of their last dоcumented contact with him, 12 October 2004. Defendant presented no evidence at all to contradict any of plaintiff’s evidence on any issue, including Dr. Rostand’s opinion as to plaintiff’s disability.
The foregoing is competent evidence to support the Commission’s finding that рlaintiff had suffered from asbestosis as a result of his employment with defendant-employer and the disease had rendered him unable to perform gainful employment since 3 December 1999. Additionally, the Commission’s other findings are binding on this Court, because they are not jurisdictional and defendant did not assign error to them.
IV. Conclusion of Law
The Commission found as fact that plaintiff was “permanently and totally disabled.” However, “whether an employee is disabled [for purposes of workers’ compensation] is a question of law.”
Heffner v. Cone Mills Corp.,
In order to support a conclusion that a claimant is totally and permanently disabled by exposure to asbestos, and entitled to benefits under N.C. Gen. Stat. § 97-29 (2005),
2
the Commission must find that the claimant is totally unable,
Frazier v. McDonald’s,
The Commission’s findings that (1) plaintiff had received medical treatment for asbеstosis-related problems; (2) plaintiff suffered from breathing problems as a result of asbestosis; (3) plaintiff had suffered from asbestosis as a result of his employment with defendant-employer and the disease had rendered him unable to perform gainful employment since 3 December 1999; (4) plaintiff’s breathing problems severely impaired his daily activities; and (5) as a result of asbestosis, it was difficult, if not impossible, for plaintiff to do any job that required any amount of physical activity were sufficient to support the Commission’s conclusion that plaintiff was totally аnd permanently disabled, and entitled to benefits under N.C.
Gen. Stat. § 97-29 starting 3 December 1999. The findings that plaintiff stopped working in 1995 as a result of his disease, and that plaintiffs asbestos-related condition continued to deteriorate until his death, though
Affirmed.
Notes
. Defendant assigns error to a finding of fact in the 2003 Opinion and Award. Though we could exercise our discretion to review that intermediate decision because it is on the merits and necessarily affects the judgment, N.C. Gen. Stat. § 1-278 (2005), we decline to do so because the 2006 Opinion and Award contained an almost identical finding which was also assigned as error.
. N.C. Gen. Stat. § 97-29 fixes compensation rates for total incapacity.