Eller v. Porter-Hayden Co. , 48 N.C. App. 610 ( 1980 )

ERWIN, Judge.

Plaintiff makes two arguments on appeal, that the Commission erred in two respects in this case: (1) in concluding as a matter of law that plaintiffs disablement resulted more than two years after his last injurious exposure to asbestos dust in his employment by defendant in North Carolina and (2) in concluding as a matter of law that defendant is not the employer in whose employment plaintiff was last injuriously exposed within the provisions of G.S. 97-57 and that defendant is not liable for compensation payable for plaintiffs disablement. For the reasons that follow, we affirm the Commission.

We note that the findings of fact of the Industrial Commission are conclusive on appeal only when supported by competent evidence, and the Court, on appeal, may review the evidence to determine as a matter of law whether there is any evidence tending to support the findings of fact and whether such findings justify the legal conclusions and decisions of the Commission. McRae v. Wall, 260 N.C. 576, 133 S.E. 2d 220 (1963); Vause v. Equipment Co., 233 N.C. 88, 63 S.E. 2d 173 (1951); Gaines v. Swain & Son, Inc., 33 N.C. App. 575, 235 S.E. 2d 856 (1977).

In view of the above rule, we now examine the record in that light.

G.S. 97-58(a) provides, inter alia, that “an employer shall not be liable for any compensation for asbestosis ... unless disablement or death results within two years after the last exposure to such disease.”

The Commission made the following findings of fact, inter alia:

“7. Plaintiff has the occupational disease, Asbestosis, Grade II, and from that occupational disease became disabled 30 May 1975. Plaintiff’s disability is 70 percent.

8. Plaintiff was not exposed to the hazard of asbestosis for 30 working days, or parts thereof, during his employment by Porter-Hayden Company in North Carolina from 24 June 1973 to 26 July 1973.

Exception No. 2

9. Plaintiff was exposed to the hazard of asbestosis within seven consecutive calendar months for 30 working days or more, or parts thereof, during the term of his employment by Porter-Hayden Company in North Carolina from 4 October 1972 to 2 February 1973.

Exception No. 2A”

The Commission concluded as a matter of law, inter alia: “Plaintiffs disability resulted more than two years after his last injurious exposure to asbestos dust in his employment by Porter-Hayden Company in North Carolina.”

In Conclusion of Law No. 5, the Commission used the terms plaintiffs disability rather than the statutory required terms plaintiffs disablement. G.S. 97-58(a). The Commission also used the terms his last injurious exposure to asbestos dust, when the Commission should have used the terms his last exposure to asbestos dust. However, the results reached by the Commission will not be disturbed by us.

In Autrey v. Mica Co., 234 N.C. 400, 408, 67 S.E. 2d 383, 389 (1951), our Supreme Court stated: “It is pertinent here to note that the statute G.S. 97-58(b) provides that ‘the time of notice of an occupational disease shall run from the date that the employee has been advised by competent medical authority that he has the same.’ ” In the case sub judice, employee was notified of his disablement by competent medical authority on 1 August 1975, and his claim was timely filed with the Commission on 24 February 1977. G.S. 97-58(b).

The Commission found that plaintiff was not exposed to the hazard of asbestosis for 30 work days, or a part thereof, during his employment by defendant from 24 June 1973 to 26 July 1973. This finding established plaintiff’s last exposure to asbestos dust with defendant to be from 4 October 1972 to 2 February 1973. We hold that the evidence supports the finding of fact that plaintiff’s disablement resulted more than two years after his last injurious exposure to asbestos dust in his employment with defendant Porter-Hayden. G.S. 97-58(a).

In view of the conclusions we have reached on the first contention of plaintiff, it is not necessary to consider the second contention to dispose of this case on appeal.

The opinion and award of the Commission is affirmed and remanded to make technical corrections as set out in this opinion.

Affirmed and remanded.

Chief Judge Morris and Judge Clark concur.