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Payne v. Charlotte Heating & Air Conditioning8/16/2005
disease related to asbestos exposure. A third certified "B reader" found pulmonary abnormalities caused by asbestosis, but concluded that asbestos exposure probably did not contribute to Mr. Payne's pulmonary impairment.
In February 1996, Mr. Payne filed an Industrial Commission Form 18B seeking total disability benefits based on asbestosis. A hearing was conducted on Mr. Payne's claim on 3 May 2000 by deputy commissioner Morgan S. Chapman. On 16 October 2000, Mr. Payne died. The deputy commissioner ultimately ordered that the record remain open until 15 September 2001, almost a year later. On 21 November 2001, the deputy commissioner issued an opinion and award, sustaining defendants' objection to any ruling on the issue of death benefits; holding that, in any event, death benefits were barred by N.C. Gen. Stat. § 97-61.6; and finding that Mr. Payne did not contract asbestosis and did not suffer any disability as a result of his exposure to asbestos.
On 14 July 2003, the Full Commission filed an opinion and award, finding that the issue was properly before the Commission; that Mr. Payne did indeed have asbestosis; that his asbestosis caused his total disability and significantly contributed to his death; and that his last injurious exposure occurred during his employment with R&W. Accordingly, the Commission awarded total disability compensation from 19 October 1999 through 16 October 2000 and death benefits under N.C. Gen. Stat. § 97-39. Defendants R&W and Travelers have appealed.
I.
Defendants first contend that the issue of death benefits was not properly before the Commission for determination. When a hearing was first requested, Mr. Payne was still alive. He died after the hearing, but prior to the entry of the deputy commissioner's opinion and award. On 28 February 2001, the deputy commissioner substituted Mrs. Payne, the administratrix for Mr. Payne's estate, as plaintiff and, on 6 September 2001, Mrs. Payne filed an amended Form 18B to assert a claim for death benefits. The Full Commission concluded that as a result of the amended Form 18B, "the issue of decedent's eligibility for death benefits is before the Full Commission."
Defendants contend that the amended Form 18B and the substitution of Mrs. Payne as administratrix were insufficient to bring the issue of death benefits before the Commission. Defendants have not, however, cited any authority to support this contention. Under Rule 28(b)(6) of the Rules of Appellate Procedure, " ssignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned." (Emphasis added.) We are not, therefore, free to revisit the Commission's determination that the amended Form 18B allowed the Commission to address the issue of death benefits.
Defendants have, however, cited authority for their contention that they "were not afforded an opportunity to present evidence or investigate the matter in light of a claim for death benefits." Nonetheless, the record reveals that defendants questioned plaintiff's expert witness extensively regarding Mr. Payne's death and that plaintiff filed her amended Form 18B on or about 6 September 2001, prior to the closing of the record and more than two months before the deputy commissioner filed her opinion and award. While on notice that plaintiff intended to pursue death benefits, defendants did not ask the deputy commissioner to extend the time for completing the record. Defendants apparently chose to rely upon their contention that the issue was not properly before the Commission.
After the deputy commissioner declined to address the issue of death benefits, plaintiff, in her Form 44 "A
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