                                NO. COA13-977

                       NORTH CAROLINA COURT OF APPEALS

                          Filed: 18 February 2014


DOUGLAS SCOTT FILE,
     Employee-Plaintiff,

     v.                                 From N.C. Industrial
                                        Commission,
                                        No. 518257
NORANDAL USA, INC.,
     Employer,

ACE USA,
     Carrier, Defendants.


     Appeal by Douglas Scott File from Opinion and Award entered

10 May 2013 by the North Carolina Industrial Commission.        Heard in

the Court of Appeals 7 January 2014.


     Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff.

     Hedrick, Gardner, Kincheloe, & Garofalo, L.L.P., by Paul C.
     Lawrence, Zachary V. Renegar, and M. Duane Jones, for
     defendants.


     ELMORE, Judge.


     Douglas   Scott    File   (plaintiff)   appeals   from   the   North

Carolina Industrial Commission’s denial of his claim for workers’

compensation benefits pursuant to N.C. Gen. Stat. § 97-53.          After

careful review, we affirm the Opinion and Award of the Industrial

Commission.
                                     -2-
                                   I. Background

     On 28 April 2005, plaintiff filed a Form 18 “Notice of

Accident to Employer and Claim of Employee” alleging that his close

proximity to high energy machinery at his workplace exposed him to

radiation that contributed to the development of brain cancer.

Plaintiff’s    employer,   Norandal    USA,    Inc.   (defendant),   denied

plaintiff’s claim.     Thereafter, the claim was assigned for hearing

before the Industrial Commission, and Deputy Commissioner J. Brad

Donovan     denied   plaintiff’s    claim     for   workers’    compensation

benefits.     Plaintiff subsequently appealed to the Full Commission

(the Commission).     In an Opinion and Award filed 10 May 2013, the

Commission ruled that plaintiff failed to “prove that he suffer[ed]

from an occupational disease compensable within the meaning of

N.C. Gen. Stat. § 97-53(13)” and denied his claim.             Plaintiff now

appeals to this Court from the Commission’s 10 May 2013 Opinion

and Award.

                                    II. Facts

     Defendant is a company that owns an aluminum plant (the plant)

in Salisbury and manufactures aluminum foil.          Plaintiff worked for

defendant in the plant from 1984 until 2007.          Between the years of

1984 and 1994, plaintiff was employed as a mill operator.               The

mill is a machine that transforms a thick sheet of aluminum to a
                                        -3-
thin   sheet    of   aluminum   foil.         The    plant      has    five    mills   in

operation, and each utilizes a “Measurex” device (collectively

“the devices”), which sends x-ray beams through an aluminum sheet

to measure its thickness.        Once the thickness is determined, the

device sends the data to a computer that modifies the mill rolls

to make sure the aluminum thickness is appropriate.

       Plaintiff worked in the maintenance department from 1994

until his retirement in 2007.           Plaintiff was diagnosed with brain

cancer in 2000, had surgery to remove a benign tumor, and returned

to work after six months.        The brain cancer returned in 2004, and

once again plaintiff missed time from work to treat his condition.

Plaintiff returned to work, only to be diagnosed with brain cancer

again and develop a malignant tumor in 2007.                 Due to complications

from the third surgery, plaintiff was unable to perform his

occupational responsibilities and he retired on disability.

       During   plaintiff’s     employment,         his   work        duties   included

preventative maintenance and repairs on the mills, which exposed

him to the devices on a daily basis.                Plaintiff testified that he

worked within three to five feet of the devices while they were

running.    This was corroborated by Terry Walker, a colleague of

plaintiff’s,     who    performed       the    same       job     responsibilities.

Plaintiff called Dr. Max Costa and Dr. David Schwartz as expert
                                        -4-
witnesses.       They both opined that plaintiff’s employment increased

his risk of developing brain cancer due to radiation exposure from

the devices.

      The devices were manufactured by Honeywell Corporation, and

Robert     Kesslick     was    Honeywell’s    on-site    technician      during

plaintiff’s employment.          Kesslick maintained the devices’ control

system and made repairs on the devices.            Defendant called Kesslick

as a witness, and he testified that the closest an individual could

get to Mills #2 and #3 was five feet and ten feet on Mills #1 and

#4.     He further stated that throughout his years testing the

devices, he “never received a dosage of any recordable level of

radiation.”       Defendant tendered Dr. Robert Dixon as an expert in

x-ray    physics    with   subspecialties     in   radiation   shielding    and

radiation dosimetry.          He concluded that any radiation exposure to

employees from the devices would be “virtually non-existent[.]”

      At   the    hearing,     plaintiff   introduced   the    on-site   device

safety manual provided by Honeywell to defendant, an “Ionizing

Radiation    Fact     Book[,]”    and   the   “BEIR   Study”   to   contradict

defendant’s witnesses about the devices’ radiation levels and the

effects of radiation on humans.

                                    III. Analysis

a.) Consideration of Evidence
                                   -5-
     Plaintiff argues that the Commission erred by disregarding

documentary evidence introduced by him during Dixon’s testimony and

Kesslick’s deposition.     We disagree.

     Review of an Opinion and Award of the Industrial Commission “is

limited to consideration of whether competent evidence supports the

Commission’s findings of fact and whether the findings support the

Commission’s conclusions of law.    This ‘court’s duty goes no further

than to determine whether the record contains any evidence tending

to support the finding.’” Richardson v. Maxim Healthcare/Allegis

Grp., 362 N.C. 657, 660, 669 S.E.2d 582, 584 (2008) (citation omitted)

(quoting Anderson v. Lincoln Constr. Co., 265 N.C. 431, 434, 144

S.E.2d 272, 274 (1965)).    This Court conducts a de novo review of the

Commission’s conclusions of law.    Starr v. Gaston Cnty. Bd. of Educ.,

191 N.C. App. 301, 305, 663 S.E.2d 322, 325 (2008).

     Before the Commission makes findings of fact, it “must consider

and evaluate all of the evidence.    Although the Commission may choose

not to believe the evidence after considering it, it may not wholly

disregard or ignore competent evidence.”    Lineback v. Wake Cnty. Bd.

of Comm’rs, 126 N.C. App. 678, 680, 486 S.E.2d 252, 254 (1997)

(citations omitted).   Where the Commission’s Opinion and Award fails

to indicate that it considered testimony “relevant to the exact point

in controversy,” it “must be vacated, and the proceeding remanded to

the Commission to consider all the evidence, make definitive findings
                                       -6-
and proper conclusions therefrom, and enter the appropriate order.”

Jenkins v. Easco Aluminum Corp., 142 N.C. App. 71, 78-79, 541 S.E.2d

510, 515 (2001) (citation and quotation omitted).              However, we have

specifically declined to “require findings of fact regarding a report”

used during depositions.       Hunt v. N. Carolina State Univ., 194 N.C.

App. 662, 666, 670 S.E.2d 309, 312 (2009).

      In Hunt, the plaintiff argued on appeal that the Commission

erroneously ignored an opinion of an expert “by not considering or

mentioning [the expert’s] vocational report” in its Opinion and Award.

Id. at 664-65, 670 S.E.2d at 311.        The expert did not testify at the

hearing in front of the Commission or by deposition.            Id. at 665, 670

S.E.2d at 312.     Instead, two doctors relied on the expert’s report

during their testimony.       Id. at 666, 670 S.E.2d at 312.           Because the

Commission made specific findings as to the doctors’ testimony, this

Court ruled that “[i]t was not necessary for the Commission to make

further     findings    regarding      the   documents     used    during        the

depositions.”     Id.

      Similarly, plaintiff in this case introduced the safety manual,

the   “Ionizing   Radiation    Fact    Book[,]”    and   the   “BEIR    Study”    to

contradict Dixon’s testimony about the devices’ radiation levels and

the effects of radiation on humans.               The safety manual was also

discussed    in   detail   during     Kesslick’s    deposition.        While     the

Commission did not specifically mention the documents in its Opinion
                                      -7-
and Award, it made detailed findings about both Dixon’s and Kesslick’s

testimony.    Thus, similar to Hunt, the Commission was not required

to make specific findings of fact related to the documents used during

the testimony of Dixon and Kesslick.        See Bryant v. Weyerhaeuser Co.,

130 N.C. App. 135, 139, 502 S.E.2d 58, 62 (1998) (quotation omitted)

(acknowledging that while the Commission “did not specifically find

that   it   was   rejecting   the   evidence”   in   support   of   appellant’s

contention, “[s]uch negative findings are not required”);             See also

Graham v. Masonry Reinforcing Corp. of Am., 188 N.C. App. 755, 763,

656 S.E.2d 676, 682 (2008)(“[T]he Commission is not required to make

findings as to each fact presented by the evidence[.]”).

b.) Findings of Fact

       Next, plaintiff argues that the trial court erred in making

findings of fact that were not supported by any competent evidence.

Specifically, plaintiff challenges findings of fact #11, #13, #6, and

#8.    We disagree.

       “If there is any competent evidence supporting the Commission’s

findings of fact, those findings will not be disturbed on appeal

despite evidence to the contrary.”       Graham, 188 N.C. App. at 758, 656

S.E.2d at 679.

       First, plaintiff challenges part of finding #11, which states:

             11. It is Dr. Dixon’s opinion that plaintiff
             was not exposed to radiation above background
             levels, and therefore, that his employment did
             not contribute to his development of brain
                                   -8-
             cancer.

Dixon testified that he measured the level of background radiation

(radiation levels found in the general environment) outside the

facility and next to the device while it emitted x-rays. Dixon stated

that he “couldn’t detect anything above the natural background when

[he] made the measurement.”      He “got as close as [he] could with

[his] detector, got nothing, and also made a measurement where people

would normally be around called the bridle area.”     He “looked around

and nothing could be found.”        Based on his measurements, Dixon

concluded that “the chances of any radiation above –- significantly

above background would be very, very small, if any.          I couldn’t

measure any.    And I got a lot closer than [plaintiff] would normally

be if he were exposed. . . .         In other words, it couldn’t have

produced this cancer.” Clearly, finding #11 is supported by competent

evidence.

        Plaintiff also challenges finding #13, which states, in relevant

part,

             13. Dr. Costa’s opinion that plaintiff’s
             employment with defendant-employer placed him
             at an increased risk of developing brain
             cancer and that it was a significant
             contributing factor to his development of
             brain cancer was predicated on a belief that
             there was a “general leakage of radiation” in
             the area in which plaintiff worked, an
             assumption which is not borne out by the
             testimony of Mr. Kesslick and Dr. Dixon. With
             regard to increased risk specifically, Dr.
             Costa testified, “I imagine those machines
                                 -9-
            give off radiation so I think that that [sic]
            would be higher than the general public . . .”
            When Dr. Costa testified on cross examination
            that “these machines tend to leak all over, .
            . .” he offered no basis in fact for that
            opinion and went on to concede that he is not
            an expert in x-ray leaks. Dr. Costa did not
            know how much or how far radiation is emitted
            from the Honeywell/Measurex devices, nor did
            he have any information about how much
            radiation above background, if any, plaintiff
            might have been exposed to in his employment.

     Costa admitted that he did not know “the amount of any radiation

that [plaintiff] might have been exposed to[.]”     He testified that

plaintiff’s “exposure would be greater than the general population”

if plaintiff was merely “near” the machine.     However, he conceded

that he did not know how far the devices emit radiation.      Costa then

testified that “[t]hese machines tend to leak all over, so, you know,

I just assumed that there was a . . . general leakage of radiation[.]”

This assertion contravenes Dixon’s testimony that the “x-ray tube is

shielded against leakage” and has a “very little chance of scatter.”

Furthermore, Costa stated that he is “not an expert” with regard to

radiation machines or x-ray leaks.      The aforementioned testimony

indicates that the Commission’s finding #13 is supported by competent

evidence.

     Plaintiff also contests a portion of finding #6, which states:

            6. During operation, it is impossible   for any
            employee to get within ten feet         of the
            Measurex device on Mills #1 and         #4. An
            employee can get no closer than five    feet to
            the sensor on Mills #2, #3, and #5.
                                   -10-

     Kesslick testified that a person “couldn’t get within ten feet”

of the device on Mill #1 or #4.     While Mills #2, #3, and #5 were in

operation, Kesslick stated that an individual “couldn’t get within

five feet of [them].”      Thus, Kesslick’s testimony provided the

Commission with competent evidence to support finding #6.

     Plaintiff also argues that the Commission’s finding of fact #8

is not supported by competent evidence because it relies on Kesslick’s

radiation badge readings to conclude that no excessive radiation

levels emitted in the work area.    Specifically, plaintiff argues that

when Kesslick worked on the devices, the mills would be shut down

such that the devices were unable to emit any radiation.     Finding of

fact #8 states:

          8.   [a]ccording    to   Mr.   Kesslick,   the
          Honeywell/Measurex     control   system    has
          multiple   safety   interlock   devices   that
          function to prevent the x-ray from emitting
          radiation when not in operation. These safety
          devices were checked at six-month intervals
          and were never found to be malfunctioning.
          Mr. Kesslick also wore a radiation dosimetry
          badge designed to record any type of radiation
          dose. During the time he worked at defendant-
          employer’s plant, Mr. Kesslick never received
          a dosage of any recordable level of radiation.

     The testimony indicates that Kesslick has worked for Honeywell-

Measurex for twenty-five years as a maintenance control technician.

One of his responsibilities is to conduct radiation safety tests on

the devices every six months.      When Kesslick performed these tests,
                                 -11-
he always wore a radiation badge, which is “designed to record any

type of radiation dose[.]”   During the testing, Kesslick ensured that

amber lights were illuminated on the device.      This indicated that

power was supplied to the x-ray tube, allowing the device to produce

x-rays.   He also verified that a red lamp was on, which indicated

that the device’s shutter was open.      When the shutter was open, x-

rays were emitted.    Thus, when Kesslick tested the devices, they

emitted x-rays, and his radiation badge could appropriately measure

any radiation exposure.   Accordingly, the Commission’s find of fact

#8 is supported by competent evidence.

c.) Causation

     Next on appeal, plaintiff argues that the Commission erroneously

relied on Dixon’s testimony that plaintiff’s “employment did not

contribute to his development of brain cancer.”    We disagree.

     Plaintiff bears the burden of establishing the elements of an

occupational disease pursuant to N.C. Gen. Stat. § 97–53(13).     Gibbs

v. Leggett & Platt, Inc., 112 N.C. App. 103, 107, 434 S.E.2d 653, 656

(1993).   Plaintiff must show that the occupational disease is

           (1) characteristic of persons engaged in the
           particular trade or occupation in which the
           claimant is engaged; (2) not an ordinary
           disease of life to which the public generally
           is equally exposed with those engaged in that
           particular trade or occupation; and (3) there
           must be a causal connection between the
           disease and the [claimant’s] employment.
                                -12-
Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d 359,

365 (1983) (citations and quotation omitted).     Thus, the Commission

must, in part, determine that plaintiff’s employment “exposed him to

a greater risk of [disease] than members of the public generally[.]”

Perry v. Burlington Indus., Inc., 80 N.C. App. 650, 655, 343 S.E.2d

215, 219 (1986).   Only once such a determination is made can the

Commission decide whether the “occupational exposure substantially

contributed to development of the disease.”     Id.   Once the issue of

causation is reached, if an “injury involves complicated medical

questions far removed from the ordinary experience and knowledge of

laymen, only an expert can give competent opinion evidence as to the

cause of the injury.”   Click v. Pilot Freight Carriers, Inc., 300

N.C. 164, 167, 265 S.E.2d 389, 391 (1980) (citation omitted).

     Here, plaintiff mischaracterizes Dixon’s testimony as an opinion

about causation rather than testimony about the level of exposure to

radiation.   Plaintiff urges us to rule, pursuant to Click, that

Dixon’s testimony was not competent evidence because he is not an

expert in providing medical causation testimony.      However, we find

Click inapplicable in the present case because the crux of Dixon’s

testimony related to whether plaintiff’s exposure to the devices

subjected him to higher radiation levels than the general public.

Through this lens, Dixon’s testimony was competent within the subject

matter of his expertise in “x-ray and physics with subspecialties in
                                      -13-
radiation   shielding    and   radiation     dosimetry.”    The     Commission

reflected Dixon’s exposure testimony in its finding of fact, which

states “[i]t is Dr. Dixon’s opinion that plaintiff was not exposed

to   radiation   above   background    levels,   and   therefore,    that   his

employment did not contribute to his development of brain cancer.”

Since the Commission found that plaintiff was not exposed to radiation

above background levels, it did not need to rely on testimony as to

whether such exposure substantially contributed to the development

of plaintiff’s brain cancer.       Thus, the Commission properly relied

on Dixon’s testimony and concluded that plaintiff’s theory was mere

“speculation of exposure which is not supported by the greater weight

of the record” and “[p]laintiff has failed to show that his condition

. . . was caused by exposure to radiation.”

d.) Compensable Claim

      Plaintiff argues that contrary to the Commission’s decision, he

met his burden as to each element for a compensable claim under N.C.

Gen. Stat. § 97–53(13).        Specifically, plaintiff argues that there

was no competent evidence to support the Commission’s finding that

plaintiff was not at an increased risk for the development of cancer

from radiation exposure compared to the general public.           We disagree.

      A plaintiff is not required to prove that he was exposed to a

specific quantity of a harmful agent to present a compensable claim.

Gay v. J.P. Stevens & Co., Inc., 79 N.C. App. 324, 333-34, 339 S.E.2d
                                      -14-
490, 496 (1986).       However, a plaintiff must establish that “the

substance [to which he was exposed] is one to which the worker has a

greater exposure on the job than does the public generally, either

because   of   the   nature    of   the   substance   itself   or   because   the

concentrations of the substance in the workplace are greater than

concentrations to which the public generally is exposed.”

Matthews v. City of Raleigh, 160 N.C. App. 597, 605-06, 586 S.E.2d

829, 836-37 (2003) (citation omitted).

     Here, the Commission considered all the evidence and assigned

weight to each piece of evidence in making its final determination.

Defendant’s evidence showed the following:            1.) the device’s shield

against radiation leakage and has an extremely low probability of

scatter; 2.)    employees cannot stand within five feet of the devices;

3.) employees have no direct contact with the devices; 4.) Kesslick

never received a measurable level of radiation during his testing of

the devices; and 5.)the radiation levels next to the devices were no

different than normal background radiation that is found in all

environments.    Furthermore, the Commission found that plaintiff did

not meet his burden, not because of his own failure to quantify the

degree of exposure, but because the Commission “plac[ed] greater

weight on the testimony of [Kesslick] and . . . Dr. Dixon” than

plaintiff’s witnesses.        Thus, the evidence supports the Commission’s
                               -15-
finding that plaintiff did not have a greater exposure to radiation

than the general public.


                           IV. Conclusion

     In sum, the Commission properly considered all of the evidence,

made findings of fact that were supported by competent evidence,

appropriately accepted evidence of causation, and correctly found

that the claim was not compensable.    Thus, we affirm the 10 May 2013

Opinion and Award of the Commission.

     Affirmed.

     Judge McGEE and Judge HUNTER, Robert C., concur.
