mold case--disability approved by North Carolina Court of Appeals

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JONES v. STEVE JONES AUTO GROUP

STEVE R. JONES, Employee, Plaintiff,

v.

STEVE JONES AUTO GROUP, Employer, and

UNIVERSAL UNDERWRITERS GROUP, r, Defendants.

No. COA08-1593

Court of Appeals of North Carolina.

Filed November 3, 2009

Van Camp, Meacham & Newman, PLLC, by M. Van Camp, for Plaintiff.

, s & Pope, P.A., by P. Blake and A. IV, for

Defendants.

STEPHENS, Judge.

I. Procedural History

On

3 January 2005, Plaintiff Steve R. completed an Industrial

Commission Form 18 seeking benefits for disability allegedly due to

mold exposure in his place of employment. On 9 September 2005,

Defendant Steve Auto Group and Defendant Universal Underwriters

Group (collectively, " Defendants " ) completed a Form 61 denying

Plaintiff's claim. On 22 May 2006, Plaintiff filed a Form 33 request

for hearing. The claim was heard by Deputy Commissioner Wanda Blanche

on 21 June 2007. Deputy Commissioner entered an Opinion

and Award on 1 February 2008 awarding Plaintiff benefits. From this

Opinion and Award, Defendants appealed to the Full Commission. The

matter was heard by the Full Commission on 5 August 2008, and by

Opinion and Award entered 12 September 2008, the Full Commission

affirmed with modifications Deputy Commissioner 's Opinion and

Award. Defendants appeal.

II. Factual Background

Plaintiff,

51 years old at the time the matter was heard by the Full Commission,

is part-owner of Steve Auto Group. In 1998, in his capacity as

minority owner and employee, Plaintiff opened two new dealerships,

Steve Honda and Steve Chevrolet. Plaintiff served as

general manager of both dealerships. Plaintiff was responsible for

making all management decisions, and oversaw sales, finance, and

insurance. Plaintiff often worked 10-hour days and was described as

very professional, sharp, and good with both customers and finances. At

no time prior to mid-2000 did Plaintiff experience any medical ailments

that prevented him from performing his duties and responsibilities on a

full-time basis.

Between late 1999 and mid-2000, the building

which housed Steve Honda, and Plaintiff's office, was remodeled.

After the remodeling was completed, Plaintiff moved back into his

office in the building. However, Myrick Construction's failure to

properly caulk and seal along the base of the exterior wall of

Plaintiff's office caused water intrusion into the wallboard, wall

cavity, sheetrock, and carpeting of Plaintiff's office.

In late

2000, Plaintiff began to experience medical problems, including

excessive and uncontrolled coughing, wheezing, a burning sensation in

his nose and mouth, headaches, dizziness, and a lack of energy.

Plaintiff's work performance began to deteriorate as Plaintiff lost his

ability to calculate numbers in his head, and Plaintiff had severe

memory problems. Plaintiff's medical and performance issues continued

to worsen until September 2003. Plaintiff continued to receive a wage

of $10,000 per month during this time, even though he was not

performing his duties as general manager.

In April 2003, Steve

Auto Group's majority owner, Tom , removed Plaintiff as

general manager of the dealerships. continued to pay Plaintiff

his monthly salary until 28 December 2005. Plaintiff has not received a

salary since that date.

In August 2003, Plaintiff's wife was

undergoing a medical procedure performed by Dr. Hasson, a

vascular surgeon. During the procedure, Plaintiff began to cough

uncontrollably and had to leave the room. After the procedure, Dr.

Hasson spoke with Plaintiff about his symptoms and work conditions. Dr.

Hasson opined that Plaintiff's symptoms may be the result of mold

exposure. Following Plaintiff's discussion with Dr. Hasson, Plaintiff

contacted Myrick Construction and had a representative from Myrick cut

several holes in the wall of his office. The holes revealed that the

wall cavity was " heavily laden " with black mold, with mold growing

inside the sheetrock, insulation, and electrical receptacles.

Plaintiff

then contacted Mike Shrimanker of EEC, Inc., a certified industrial

hygienist, registered professional engineer, certified safety

professional, certified audio-metric technician, and certified Asbestos

Hazard Emergency Response Act inspector. Mr. Shrimanker advised

Plaintiff to leave the office and lock the door until Mr. Shrimanker

arrived. When Mr. Shrimanker arrived, he observed black mold on the

back of the sheetrock that had been cut out of the wall and on the

backs of Plaintiff's chairs. Mr. Shrimanker took air and tape samples

from inside Plaintiff's office to identify what kinds of mold were

present. He also took air and tape samples from outside the building.

The

mold testing established that there was no stachybotrys, commonly known

as black mold, in the outdoor samples, but high levels of stachybotrys

in the samples taken from inside Plaintiff's office. Mr. Shrimanker

testified that stachybotrys should not have been present inside or

outside of Plaintiff's office in any amount and that the average member

of the general public is not exposed to stachybotrys on a regular

basis. The testing further revealed that there was no aspergillus,

another type of mold, in the outdoor samples, but elevated levels of

aspergillus in the samples taken from inside Plaintiff's office. In

addition, the testing revealed small levels of penicillium, a type of

mold, in the outdoor samples, and significantly higher levels of

penicillium in the samples taken from inside Plaintiff's office. Mr.

Shrimanker testified that although aspergillus and penicillium are

commonly found in the outside air, their levels should be greater

outdoors than indoors. Testing of Plaintiff's home revealed no elevated

levels of mold.

Dr. E. Schmechel, a clinical professor of

medicine at Duke University and board certified in neurology and

psychology, first saw Plaintiff on 13 October 2003. He performed a

physical examination of Plaintiff and diagnosed him with " asthmatic

reactive airway disease. " Dr. Schmechel also performed a neurological

exam, which included cognitive screening, and diagnosed Plaintiff with

" mild cognitive impairment[.] " According to Dr. Schmechel, there is no

indication that Plaintiff suffered from any cognitive defects prior to

his exposure to mold. It was Dr. Schmechel's opinion that Plaintiff's

pulmonary airway disease is most likely the cause of his cognitive

dysfunction.

Dr. Kussin, an associate clinical professor of

medicine at Duke University in the Division of Pulmonary, Allergy, and

Critical Care Medicine, first saw Plaintiff on 23 October 2003.

According to Dr. Kussin, before Plaintiff's exposure to mold,

Plaintiff's childhood asthma had resolved and was asymptomatic. In

October of 2003, however, Dr. Kussin reported that Plaintiff had

evidence of both upper and lower airway problems, including

hyperinflation of the lungs, inflammation and narrowing of his airways,

and abnormalities of his upper airway and vocal chords. Dr. Kussin

opined that Plaintiff's persistent asthma and related symptoms were

caused by his exposure to mold at work.

Plaintiff also saw Dr.

C. Thornton, a physician at the Pinehurst Medical Clinic and

board certified in internal, pulmonary, critical care, and sleep

medicine, in October 2003. At the time of Plaintiff's first visit, he

complained of a marked aggravation in his respiratory symptoms,

including sudden onsets of shortness of breath and a terrible cough.

Plaintiff also reported having problems with memory and dizziness, and

an inability to focus. Dr. Thornton testified that stachybotrys is at

the top of the list of dangerous molds because it is capable of

provoking an immune response and because it produces toxins that can

affect the human body and human function. Dr. Thornton opined that

Plaintiff's prolonged exposure to the combination of stachybotrys,

aspergillus, and penicillium " perpetuated and established in

[Plaintiff] an immunologic state that perpetuated a very serious

illness. " In Dr. Thornton's opinion, Plaintiff's exposure to the high

levels of mold at work was " the factor " in the onset of Plaintiff's

lung inflammation.

III. Discussion

Appellate

review of an opinion and award of the Full Commission is generally

limited to (i) whether the Commission's findings of fact are supported

by competent evidence, and (ii) whether the Commission's conclusions of

law are justified by the findings of fact. v. Wal-Mart, 360 N.C. 41, 43,

619 S.E.2d 491, 492 (2005). The Full Commission's conclusions of law are

reviewed de novo. Bond v. Masonry, Inc., 139 N.C. App. 123, 127, 532

S.E.2d 583, 585 (2000).

A. Occupational Disease

By

Defendants' first argument, Defendants contend that the Commission

erred in concluding that Plaintiff contracted an occupational disease

as defined by N.C. Gen. Stat. § 97-53(13). We disagree.

N.C. Gen.

Stat. § 97-53, which lists various compensable occupational diseases,

does not include pulmonary airway disease among these. However, a

disease not specifically listed in the statute may nonetheless be

compensable pursuant to N.C. Gen. Stat. § 97-53(13), which defines an

occupational disease as

[a]ny disease . . . which is

>proven to be due to causes and conditions which are characteristic of

>and peculiar to a particular trade, occupation or employment, but

>excluding all ordinary diseases of life to which the general public is

>equally exposed outside of the employment.

N.C. Gen.

Stat. § 97-53(13) (2007). Our Supreme Court has interpreted this

language as requiring three elements in order to prove that a disease

is an occupational disease: (1) the disease must be characteristic of

and peculiar to the claimant's particular trade, occupation, or

employment; (2) the disease must not be an ordinary disease of life to

which the public is equally exposed outside of the employment; and (3)

there must be proof of a causal connection between the disease and the

employment. Rutledge v. Tultex Corp./Kings Yarn, 308 N.C. 85, 93, 301 S.E.2d

359, 365 (1983); accord Hardin v. Motor Panels, Inc., 136 N.C. App. 351, 354,

524 S.E.2d 368, 371, disc. review denied, 351 N.C. 473, 543 S.E.2d 488 (2000).

The first two elements of the Rutledge test are satisfied where the employee can

show that " the employment

exposed the worker to a greater risk of contracting the disease than

the public generally. " Rutledge, 308 N.C. at 94, 301 S.E.2d at

365. The third element is satisfied if the employment " `significantly

contributed to, or was a significant causal factor in, the disease's

development.' " Hardin, 136 N.C. App. at 354, 524 S.E.2d at 371 (citation

omitted). Since Rutledge, this two-pronged requirement for proving an

occupational disease,

increased risk and causation, has been approved and applied repeatedly

by this Court and the North Carolina Supreme Court. Hassell v. Onslow County Bd.

of Educ., 362 N.C. 299, 306, 661 S.E.2d 709, 714 (2008).

1. Increased Risk

Defendants

first challenge the sufficiency of the evidence to support the

Commission's determination that Plaintiff's employment exposed him to

an increased risk of contracting his illness as compared to the public

generally. Specifically, Defendants argue that " [t]he Commission

disregarded our Supreme Court precedent which requires a link between

the nature of an employment and the alleged occupational disease. " We

are unpersuaded by Defendants' argument and conclude that, on the

record before us, we are bound by the prior decision of this Court in Robbins v.

Wake Cty. Bd. of Educ., 151 N.C. App. 518, 566 S.E.2d 139 (2002).

In Robbins, plaintiff filed a claim with the Commission seeking compensation for

his wife's contraction of and death from mesothelioma. Plaintiff's wife

( " Ms. Robbins " ) had worked for defendant as a secretary and graphic

artist from 1978 to 1981. During her employment, Ms. Robbins worked at

defendant's central administrative office building in a large room on

the second floor that was divided by partitions. She also spent about

two hours per day in the office's print shop and made daily trips to

the basement of the building to place materials in courier boxes, which

were located next to the boiler room. In 1988, a survey performed on

the building revealed that the building contained substantial amounts

of asbestos in the ceiling plaster, wall plaster, floor tile, pipe

insulation in the boiler room and print shop, vibration dampers of the

heating system, and numerous other areas.

In late 1992, Ms.

Robbins developed a persistent cough. In January of 1993, a chest x-ray

revealed a suspicious shadow in her lung, and a CT scan confirmed the

presence of an egg-sized tumor in her right lung. Ms. Robbins was

diagnosed with mesothelioma, a cancer most often associated with

asbestos exposure. She died of the disease in June 1995 at the age of

41.

The Full Commission found and concluded that Ms. Robbins had

contracted a compensable occupational disease as a result of her

employment with defendant. In so concluding,

[t]he

>Commission found as fact that [Ms. Robbins'] employment at defendant's

>. . . facility exposed her to a greater risk of contracting

>mesothelioma than the public generally. The Commission found that while

>the nature of [Ms. Robbins'] employment as a secretary and graphic

>artist did not place her at risk for contracting the disease, the fact

>that her employment required her to work in a building with

>higher-than-normal levels of asbestos did place her at such a risk, >and that

the risk was higher than that to which the general public was

>exposed, as not all buildings contain significant amounts of friable

>asbestos.

Id. at 521, 566 S.E.2d at 142 (emphasis

added). In upholding the opinion and award of the Full Commission, this

Court concluded that the Commission's findings were supported by the

testimony of Dr. Victor Roggli, an expert in the pathology of

asbestos-related diseases of the lung, including mesothelioma. Dr.

Roggli testified that it was his opinion that Ms. Robbins' exposure to

asbestos at the building placed her at an increased risk for developing

mesothelioma. He opined that mesothelioma is a disease which is

characteristic of particular trades or occupations, such as Robbins'

employment, where the employee is exposed to asbestos.

Dr. Roggli

also testified that mesothelioma is not an ordinary disease of life

that is typically seen in the general population. Dr. Roggli stated

that mesothelioma is very rare among the general population, and that

it is estimated that there exist only one or two cases per million

people per year where mesothelioma develops without asbestos exposure.

Thus, this Court concluded that " the Commission's findings with respect

to the first two elements of the Rutledge test were sufficiently supported by

competent evidence. " Id. at 522, 566 S.E.2d at 142-43. This Court further

concluded that the

Commission's findings supported the Commission's conclusion of law

that, as a result of her employment with defendant, Ms. Robbins

sustained a compensable occupational disease within the meaning of N.C.

Gen. Stat. § 97-53(13).

In the present case, the Full Commission

found as fact that " Plaintiff's employment, and specifically, his

exposure to mold for approximately three years, exposed [P]laintiff to

a greater risk of developing his pulmonary airway disease than members

of the general public not so employed. "

This finding is supported

by competent evidence in the record. Mr. Shrimanker testified that

under normal conditions, " [t]he general public doesn't get exposed to

stachybotrys " at any level. The results of the mold testing performed

by Mr. Shrimanker on 27 August 2003 revealed a " large quantity " of

stachybotrys in the tape and air samples taken from plaintiff's office,

with no stachybotrys outside. Additionally, the test results revealed

no aspergillus in the outdoor sample, but elevated levels of

aspergillus in the samples from Plaintiff's office, and small levels of

penicillium in the outdoor sample, with significantly higher levels of

penicillium in samples taken from Plaintiff's office.

Dr.

Thornton testified that stachybotrys is " perhaps the most noxious

[mold] and most likely to affect human health in an adverse way. " He

further testified that Plaintiff's exposure to stachybotrys,

aspergillus, and other molds present in his office placed him at an

increased risk, greater than that of members of the general public, of

developing the inflammation in his lungs.

Dr. Kussin also

testified that while there may be as many as five million adults in

this country with asthma, no more than " [one] percent have asthma as a

result of occupational exposures or environmental exposures that are

not allergic . . . . " He further testified that " even a smaller subset

of that [one] percent " sustain the type of problems that Plaintiff

experienced.

We conclude that this testimony is competent to

support the Commission's finding that Plaintiff's work placed him at an

increased risk for contracting pulmonary airway disease.

Defendants

argue that Plaintiff's testimony that he had visited hundreds of

automobile dealerships in his 20-year career but only two had contained

mold, as well as Dr. Thornton's testimony that he knows of no

correlation between the auto dealership industry and mold-related

disease, shows that there is no link between mold-related disease and

auto dealerships. However, as in Robbins, although the nature

of Plaintiff's employment as an automobile dealership manager did not

increase his risk for contracting pulmonary airway disease, the fact

that his employment required him to work in a building contaminated

with mold did place him at an increased risk. Competent evidence in the

record supports the Commission's determination that the risk to which

Plaintiff was exposed was greater than the risk to which the general

public is exposed as stachybotrys should not have been present in

Plaintiff's office in any amount. Because the Commission's findings are

supported by competent evidence, this Court is bound by them, even

though the record also contains contrary evidence. Gilberto v. Wake Forest

Univ., 152 N.C. App. 112, 118, 566 S.E.2d 788, 792 (2002).

2. Causation

Defendants

next argue that the expert medical testimony relied upon by the

Commission was not sufficient to prove a causal connection between

Plaintiff's illness and his employment. Specifically, Defendants argue

that medical experts erroneously premised their opinions " on the

temporal relationship between discovery of mold [in] [P]laintiff's

office and the onset of [P]laintiff's symptoms. " Defendants'

argument is meritless. " [W]here the exact nature and probable genesis

of a particular type of 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 rs, Inc., 300 N.C. 164,

167, 265 S.E.2d 389, 391 (1980). However, " `expert opinion testimony

[that] is based merely upon speculation and conjecture . . . is not

sufficiently reliable to qualify as competent evidence on issues of

medical causation.' " Cannon v. Goodyear Tire & Rubber Co., 171 N.C. App. 254,

262, 614 S.E.2d 440, 445 (quoting Young v. Hickory Bus. Furn., 353 N.C. 227,

230, 538 S.E.2d 912, 915 (2000)), disc. review denied, 360 N.C. 61, 621 S.E.2d

177 (2005); see also Dean v. Carolina Coach Co., 287 N.C. 515, 522, 215 S.E.2d

89, 94 (1975) ( " [A]n expert is not

competent to testify as to a causal relation which rests upon mere

speculation or possibility. " ).

The Commission made the following findings of fact regarding causation:

25.

>Dr. Thornton was of the opinion that [P]laintiff's exposure to mold in

>the [workplace] was the cause of the inflammation in his lungs.

.. . . .

29.

>In Dr. Thornton's opinion, the debilitating symptoms that [P]laintiff

>exhibits, including problems with breathing, coughing, inflamed

>airways, and the acceleration or exacerbation of those symptoms, as

>well as his cognitive defects are all caused by long term exposure to

>stachybotrys and other molds and their toxins.

.. . . .

33. The basis for Dr. Thornton's causation opinion is not just the temporal

relationship, >which he described a " quite compelling, " but the level of mold

on

>the occupational health testing, the types of mold present, the

>intensity of the exposure, the duration of the exposure, and the fact

>that anti-bodies were identified in [P]laintiff's blood stream.

.. . . .

37.

>Dr. Kussin was of the opinion that [P]laintiff's persistent asthma was

>causally related to his exposure to mold at the [workplace]. . . .

.. . . .

56.

>Plaintiff's [workplace] exposure to mold caused [P]laintiff's pulmonary

>condition and was a substantial contributing factor in the development

>of [P]laintiff's pulmonary airway disease and resulting conditions.

(Emphasis added.)

Dr.

Thornton opined that Plaintiff's prolonged exposure to the combination

of stachybotrys, aspergillus, and penicillium " perpetuated and

established in [Plaintiff] an immunologic state that perpetuated a very

serious illness " and that Plaintiff's symptoms and problems " were

significantly aggravated if not caused completely " by his exposure to

mold in the workplace. Dr. Thornton explained that while " there is not

a specific medical test that would clearly demonstrate definitively "

that Plaintiff's exposure to mold caused his illness, based on " the

constellation of . . . [Plaintiff's] symptoms, the time course of their

onset, [and Plaintiff's] response to therapy[,] " he felt strongly that

Plaintiff's illness was caused by his exposure to mold in his

workplace. Thus, contrary to Defendants' contention, Dr. Thornton's

opinion is not based solely " on the temporal relationship between

discovery of mold [in] [P]laintiff's office and the onset of

[P]laintiff's symptoms. "

Dr. Kussin testified that he did not

know of another irritant or exposure, other than the mold, that would

have been the primary cause of Plaintiff's symptoms and opined that

Plaintiff's persistent asthma and related symptoms were caused by his

exposure to mold at work.

Although Defendants argue that

" [P]laintiff's treating physicians assumed drastic mold exposure based

on air sampling data that did not reflect the air [P]laintiff breathed

daily, " Defendants cite no evidence from the record and make no

argument in support of this assertion. Moreover, our review of the

evidence reveals no support for this statement.

We conclude that

the testimony of Dr. Thornton and Dr. Kussin is competent evidence to

support the Commission's findings of fact that Plaintiff's exposure to

mold at his place of work caused his illness. This Court is thus bound

by these findings. Gilberto, 152 N.C. App. at 118, 566 S.E.2d at 792.

3. Personal Sensitivity

Defendants

further argue that Plaintiff's illness is not compensable as it is the

result of a preexisting personal sensitivity. We disagree.

This

Court has held that an individual's personal sensitivity to chemicals

does not result in an occupational disease compensable under our

workers' compensation scheme. See, e.g., v. Tractor Supply Co., 170 N.C.

App. 405, 612 S.E.2d 399 (2005), disc. review denied, 359 N.C. 851, 619 S.E.2d

505 (2005); Nix v. & Aikman, Co., 151 N.C. App. 438, 566 S.E.2d 176

(2002). In , plaintiff had an allergic reaction to the chemical

naphthalene, which

was stocked in plaintiff's employer's store. Plaintiff had a long

history of allergies and reactions to substances, including a diagnosis

of " chemical sensitivity, " prior to her exposure to naphthalene at

work. , 170 N.C. App. at 406, 612 S.E.2d at 401. Because

plaintiff had a " heightened peculiar susceptibility to chemicals . . .

[which] predated the exposure to naphthalene[,] " id. at 409,

612 S.E.2d at 402, this Court affirmed the Commission's conclusion that

plaintiff had failed to prove " that her employment with

defendant-employer placed her at an increased risk of contracting the

present condition[.] " Id. at 408, 612 S.E.2d at 402 (quotation marks omitted).

Similarly, in Nix, plaintiff developed hyperactive airway disease. Although

plaintiff

contended that his condition was caused by his exposure to chemicals in

the workplace, a testifying physician opined that " plaintiff was only

at an increased risk due to his `idiopathic' sensitivity to chemicals

at the workplace[,] " Nix, 151 N.C. App. at 444, 566 S.E.2d at

179, and that " only plaintiff's sensitivities to the chemicals made him

more susceptible to the disease. " Id. at 444, 566 S.E.2d at

180. Thus, this Court affirmed the Commission's conclusion that

" [p]laintiff's condition was caused by his personal, unusual

sensitivity to small amounts of certain chemicals. " Id. at 441, 566 S.E.2d at

178 (quotation marks omitted).

In

this case, the Commission made the following findings of fact relevant

to whether Plaintiff's illness was a result of a preexisting personal

sensitivity:

30. Dr. Thornton was of the opinion that

>[P]laintiff's exposure to mold was occupational in nature and not a

>personal sensitivity that produces " a noxious reaction. " . . .

.. . . .

63. Plaintiff's disability was not caused by a " personal sensitivity " to mold.

Dr.

Thornton testified that " n situations of allergic mediated asthma,

or occupational asthma mediated by a toxin, we often see a worsening of

asthma due to the inflammatory response from an intense exposure. " Dr.

Thornton explained that the reaction can last for weeks, months, or

longer, and symptoms can linger for years after the exposure to the

toxin has terminated. He further explained that " [t]his is a common

scenario in a number of different asthmatic exposures in the workplace,

and could certainly be seen with any intense exposure to a mold. . . .

And so, this is different than a sensitivity, for example, to something

that produces a noxious reaction. " Dr. Thornton further testified that

" after an intense exposure, an allergic response is established. After

the establishment of the allergic response, then that allergic response

can continue and be perpetuated for years. " Dr. Thornton stated that he

had no way to know if Plaintiff was sensitive to the molds that were

present in his office before he was exposed to them there. When asked

if the exposure that Plaintiff experienced at his place of employment

could have created an allergic response to the molds, Dr. Thornton

replied, " Yes. "

Dr. Kussin testified that Plaintiff's reaction to

the mold was " not an allergy in the way you're allergic to dust or cats

or . . . ragweed. The changes that occur in the type of asthma that

[Plaintiff] has can only be described generically as inflammatory, and

the word `allergic' doesn't necessarily need to be invoked. "

Thus, unlike in and Nix, and contrary to Defendants' contention, there is

no evidence in this

case that Plaintiff had a heightened peculiar susceptibility to mold

which predated his exposure to the mold at his workplace. To the

contrary, the evidence establishes that Plaintiff's sensitivity to mold

was caused by his exposure to mold in the workplace.

Accordingly, there is competent evidence to support the Commission's

findings of fact on this issue. Defendants' argument is overruled.

We

reiterate that, although the record contains evidence which would

support contrary findings, the Commission's findings regarding the

genesis and nature of Plaintiff's occupational disease are sufficiently

supported by competent evidence in the record and are thus conclusive

on appeal. Robbins, 151 N.C. App. at 523, 566 S.E.2d at 143. We

hold that these findings support the Commission's conclusion of law

that, as a result of Plaintiff's employment with Defendant Steve

Auto Group, Plaintiff developed a compensable occupational disease

withing the meaning of N.C. Gen. Stat. § 97-53(13).

B. Occupational Mold Exposure

Defendants

next assert that " [t]here is no competent evidence that distinguishes

Plaintiff's occupational mold exposure from mold that is ubiquitous in

the environment. " Specifically, Defendants argue that the Commission's

findings of fact 10 through 17 are not supported by competent evidence.

The challenged findings of fact are as follows:

10.

>Mr. Shrimanker observed black mold in [P]laintiff's office prior to the

>tests. This mold was located on the inside of the sheetrock,

>insulation, and electrical receptacles as well as in the carpet in

>[P]laintiff's office. According to Shrimanker, the sheetrock behind the

>wall had also been " covered with mold " due to defects in construction,

>and the saturation had been going for a " long time. "

11.

>Mr. Shrimanker was of the opinion that under normal conditions to which

>the general public is exposed, stachybotrys should not be present at

>any level. Although penicillium and aspergillus are commonly found in

>the outside air, the levels of aspergillus and penicillium should be

>greater outdoors than indoors. The mold testing performed on August 27,

>2003 found no stachybotrys in the outdoor sample and high levels of

>stachybotrys in the tape and air samples in [P]laintiff's office.

>According to Mr. Shrimanker, both the air and bulk samples " indicated

>that stachybotrys spores were pres e n t in high concentrations. " . . .

>There were small levels of penicillium in the outdoor sample, but the

>levels of penicillium in the air and tape samples in [Plaintiff's]

>office were significantly greater than the outdoor sample.[

> 1 > ]

12.

>Exposure to stachybotrys, which contains mycotoxins, can cause

>different symptoms in different individuals. Common symptoms include

>coughing, headache, dizziness, malaise, burning in the nose and mouth,

>and cold and flu-like symptoms. Plaintiff was experiencing most, if not

>all, of these symptoms between late 2000 and August 27, 2003 when the

>samples were originally tested.

13.

>Stachybotrys is known as " black mold, " and, according to Mr.

>Shrimanker, is the most dangerous of the molds because of its ability

>to produce mycotoxins. Stachybotrys may produce a trichothecene

>mycotoxin-sutratoxin H — " which is poisonous by inhalation. "

>Penicillium can cause extrinsic asthma and some species can also

>produce mycotoxins. Aspergillus can also produce mycotoxins.

14.

>As the mold dries out, it can be released by pressure, or walking on

>the carpet and by air movement through the use of air conditioning or

>heating unit. Defendants' expert, Dr. Dalton, agreed with this

>assessment. According to Mr. Shrimanker, mold can also travel from wall

>cavities into air through openings in the wall, including electrical

>receptacles.

15. The stachybotrys, penicillium,

>and aspergillus species found in [P]laintiff's office in the late 2000

>through August 27, 2003 were released into the air in the office.

16.

>Between late 2000 and August 2003, as a result of [P]laintiff's

>presence in his office, he was exposed to and inhaled mold spores,

>including stachybotrys, penicillium and aspergillus.

17. Plaintiff's home was tested for mold and no unusual or elevated levels of

mold were found.

Mr.

Shrimanker testified that upon entering Plaintiff's office, he observed

black mold on the inside of the sheetrock and on the back sides of

Plaintiff's chairs. Mr. Shrimanker also took photographs which showed

mold on the sheetrock, insulation, and electrical receptacles in

Plaintiff's office. Mr. Shrimanker's report states that " no sealer or

wall barrier(s) were installed at ground level near the wall(s)

adjacent to the downspout " and, thus, " t would be reasonable to

assume that water enters the building and has kept the carpet and the

interior space between the walls wet during heavy rain episodes. " Mr.

Shrimanker testified that " when rain stops and over a period of time

the carpet dries out, and people walk and so forth, it will kick the

spores into the air. "

Mr. Shrimanker took tape samples of the

mold from the back of the sheetrock, the back of the wallpaper, and the

exterior sheetrock wall. Air samples were also taken from inside

Plaintiff's office and outside the building. The analysis of the

samples indicates that stachybotrys spores " were present in high

concentrations " inside Plaintiff's office. Penicillium and aspergillus

were present inside as well. A report from testing done on Plaintiff's

home revealed the presence of some mold spores, but not at unusual or

elevated levels.[ 2 ]

Defendants

contend that there is no competent evidence that the mold escaped the

wall cavity or that Plaintiff breathed the mold. However, Mr.

Shrimanker testified that mold spores are blown through the air

conditioning and heating vents and escape through the space surrounding

electrical outlets, network cables, and drop ceilings. Photographs show

mold on the electrical receptacles in Plaintiff's office. Furthermore

Mr. Shrimanker testified that the carpet was contributing to the mold

found in Plaintiff's office and recommended that the carpet be replaced

during remediation. Although Mr. Shrimanker did not test the carpet to

determine if mold was present under the carpet, he testified that,

based on his observations and experience, there should have been. Mr.

Shrimanker also testified that the day the carpet was pulled up to be

replaced, he observed that the carpet was " `full of mold.' " After the

carpet had been removed, tape samples showed stachybotrys still on the

floor. Furthermore, Mr. Shrimanker testified that when dry, moldy

carpet is walked on or disturbed in some other manner, the mold spores

can get released into the air.

Defendants argue that Mr.

Shrimanker's testimony was " [in]competent evidence of an occupational

exposure to mold " as he did not test the carpet to determine if it

contained mold or what kinds of mold were present. However, Mr.

Shrimanker testified that he observed mold on the carpet and

acknowledged that identifying mold is " what [he] do[es] for a

living[.] " Furthermore, the tape and air samples taken from Plaintiff's

office identified that stachybotrys, penicillium, and aspergillus were

present in Plaintiff's office.

Mr. Shrimanker testified that the

general public is not exposed to stachybotrys under normal

circumstances. He explained that stachybotrys is not found outdoors and

is only found indoors when there has been water intrusion and there is

an organic material such as paper or cellulose present upon which the

mold can thrive. Mr. Shrimanker further testified that stachybotrys, or

black mold, is the most dangerous kind of mold and that the presence of

aspergillus and penicillium in addition to stachybotrys is like adding

" insult to an injury " in that aspergillus and penicillium make the

illness from stachybotrys exposure worse. Mr. Shrimanker's report

indicates that stachybotrys may produce mycotoxins such as sutratoxin

" which is poisonous by inhalation. " Penicillium can cause extrinsic

asthma and some species can produce mycotoxins. Aspergillus can also

produce mycotoxins.

Based on his experience, it was Mr.

Shrimanker's opinion that Plaintiff's symptoms, including the reaction

in his lungs, cough, fever, and burning eyes, were consistent with

long-term exposure to stachybotrys, aspergillus, and penicillium.

Notwithstanding

this testimony, Defendants further argue that the air samples taken on

27 August 2003 did not reflect the air quality Plaintiff breathed.

While Mr. Shrimanker testified that on any given day, depending on the

conditions, an air sample can reveal differing levels of mold in the

same room, he further explained that any level of stachybotrys, whether

it be on a tape sample or in the air, in an indoor facility is cause

for concern as an individual should not be exposed to stachybotrys to

any degree. Furthermore, " [o]ur Supreme Court rejected the requirement

that an employee quantify the degree of exposure to the harmful agent

during his employment. " s v. City of Raleigh, 160 N.C. App. 597, 606, 586

S.E.2d 829, 837 (2003) (quotation marks and citations omitted).

We

conclude that the foregoing testimony is competent to support the

challenged findings of fact regarding Plaintiff's occupational mold

exposure. Thus, the assignments of error upon which Defendants'

argument is based are overruled.

C. Lien on Third-Party Settlement Proceeds

Defendants

finally argue that, pursuant to N.C. Gen. Stat. § 97-10.2, they are

entitled to a lien against third-party settlement proceeds received by

Plaintiff. Plaintiff responds that Defendants failed to offer evidence

at the hearing on the issue of a lien, and, thus, have waived any right

to pursue a lien. However, the parties stipulated to the following:

Defendants' issues to be addressed by the Commission are:

.. . . .

e.

>If [P]laintiff's claim is compensable, have third-party settlement

>proceeds been distributed, to whom were they distributed, and, pursuant

>to N.C. Gen. Stat. § 97-10.2(h), may any resulting lien be enforced

>against persons receiving such funds[.]

Furthermore, the record contains a " Settlement Agreement and Release of Claims "

wherein

Steve

> Auto Group, Inc. d/b/a Steve Honda, R. , and

>Sherrie L. (collectively referred to as " Plaintiffs " ), Myrick

>Construction, Inc. ( " Myrick " ), Commercial Acoustical and Drywall, Inc.

>( " CAD " ), and Rockingham Paint and Glass Center, Inc. ( " RPGC " )

entered

into a settlement agreement for claims arising out of " defects in the

construction and renovation of the Steve Honda dealership "

providing for the payment of $1,000,000 to Plaintiffs. Pursuant to that

agreement,

R. agrees that any government or

>private liens, claims or demands for workers' compensation liens and/or

>medical expenses and services, and/or any unpaid bills owed for medical

>related services rendered to him prior to the date of this Agreement,

>will be paid from the sum he is to receive pursuant to this settlement

>agreement prior to distribution to him.

We conclude that Defendants have not waived their right to pursue a lien against

such third-party settlement proceeds.

An

injured employee has the exclusive right to enforce the liability of a

third party within the first twelve months following an injury. N.C.

Gen. Stat. § 97-10.2( (2007). Pursuant to subsection (h) of section

97-10.2, " n any proceeding against or settlement with the third

party, every party to the claim for compensation shall have a lien to

the extent of his interest . . . upon any payment made by the third

party by reason of such injury or death. " N.C. Gen. Stat. § 97-10.2(h)

(2007). This lien " may be enforced against any person receiving such

funds[,] " id., is a lien against " all amounts paid or to be paid " to the

employee, Hieb v. Lowery, 344 N.C. 403, 408, 474 S.E.2d 323, 326 (1996)

(emphasis removed), and is mandatory in nature. Radzisz v. Harley son of

Metrolina, Inc., 346 N.C. 84, 90, 484 S.E.2d 566, 569 (1997).

Here,

the Commission failed to determine whether third-party settlement

proceeds had been distributed; if so, to whom they were distributed;

and whether Defendants were entitled to a lien on those funds under

N.C. Gen. Stat. § 97-10.2. Accordingly, we remand this case to the

Commission to address and resolve the lien issue raised by Defendants.

AFFIRMED in part and REMANDED in part with instructions.

Chief Judge MARTIN and Judge HUNTER, JR. concur.

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