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Payne v. Charlotte Heating & Air Conditioning8/16/2005
ommission shows plenary evidence to support the Commission's findings of fact. Accordingly, those findings are conclusive on appeal." Id. at 403, 540 S.E.2d at 828.
Likewise, in this case, the Commission extensively reviewed the medical evidence, including the diagnosis of Dr. Proctor that Mr. Payne suffered from emphysema and "asbestosis and pleural plaques related to asbestos exposure"; the opinion of Dr. Fred Dula, a NIOSH certified B-reader, that Mr. Payne's chest films were "entirely consistent with asbestosis"; and the opinion of Dr. Richard Bernstein, a NIOSH certified B-reader, that Mr. Payne's x-rays showed " leural disease consistent with long standing asbestos exposure." While the Commission noted the testimony of Dr. Michael Alexander, also a certified B-reader, that any pulmonary impairment was caused by emphysema, the Commission concluded: "Given that Dr. Alexander is not a pulmonologist, did not examine plaintiff personally and is not a diagnosing physician, the Full Commission gives greater weight to the diagnostic conclusions of Dr. Proctor and the x-ray and CT interpretations of Drs. Dula and Bernstein."
While defendants argue with Dr. Proctor's diagnosis, they present questions of credibility and weight that the Commission was entitled to resolve in favor of plaintiff. An appellate court reviewing a workers' compensation claim "'does not have the right to weigh the evidence and decide the issue on the basis of its weight.'" Adams, 349 N.C. at 681, 509 S.E.2d at 414 (quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965)). Rather, the Court's duty goes no further than to determine "'whether the record contains any evidence tending to support the finding.'" Id. (quoting Anderson, 265 N.C. at 434, 144 S.E.2d at 274). Because the Commission's finding that Mr. Payne suffered from asbestosis is supported by competent evidence, it is binding on appeal.
Defendants next challenge the Commission's finding that Mr. Payne's asbestosis either caused or significantly contributed to his disability and his subsequent death. Defendants argue that there is no competent evidence that asbestosis caused plaintiff's death, and any findings made by the Commission were based upon pure speculation. To the contrary, Dr. Proctor, a specialist in pulmonary medicine, testified in his deposition to a reasonable degree of medical certainty that Mr. Payne's asbestosis significantly contributed to his death. Further, Dr. Proctor testified that Mr. Payne's asbestosis also severely impaired his ability to conduct daily activities and that he would have been unable, because of the asbestosis, to maintain employment, " articularly if there were any _ if there was any activity involved, he would not be able to do that." While defendants point to the fact that Mr. Payne had originally stopped working because of his back injury, both Mr. Payne and his wife testified that he subsequently ceased being disabled as a result of his back problem. It was for the Full Commission to decide whether that testimony was credible. Because there is evidence in the record that supports the Commission's finding that Mr. Payne's asbestosis caused his disability and significantly contributed to his death, these assignments of error are overruled.
IV.
Finally, defendants R&W and Travelers assign error to the Full Commission's finding that " ecedent's last injurious exposure to asbestos occurred during his employment with defendant-employer Ross & Witmer." According to N.C. Gen. Stat. ยง 97-57 (2003), "the employer in whose employment the employee was last injuriously exposed to the hazards of such disease" shall be liable. Under the statute, with respect to a
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