DILLON, Judge.
Travelers Casualty & Surety ("Defendant") appeals from an opinion and award of the Full Commission of the North Carolina Industrial Commission ("Full Commission" or "Commission") ordering that Defendant pay death benefits to Shirley Lipe ("Plaintiff"), widow of Ross Iddings Lipe ("Decedent"). For the following reasons, we affirm.
Decedent was employed by Starr Davis Company, Inc. ("SDC")
In January 1994, Decedent was diagnosed with asbestosis. Decedent filed an occupational disease claim with the Commission. By opinion and award entered 24 August 1999, the Commission found that Decedent's asbestosis was caused by his exposure to asbestos during his period of employment with SDC. The Commission awarded Decedent benefits of $404.24 per week, which was based on 66 2/3% of what his average weekly wages were when he retired in 1991, rather than based on his average weekly wages at the time he was diagnosed with asbestosis in 1994-which would have been zero, as Decedent had been out of work since July 1991. This Court affirmed the Full Commission's 24 August 1999 opinion and award in Lipe v. Starr Davis Co., 142 N.C. App. 213, 543 S.E.2d 533, 2001 N.C.App. LEXIS 52 (unpublished), disc. review denied, 354 N.C. 363, 556 S.E.2d 303 (2001).
In February 2010, Decedent was diagnosed with lung cancer. He died less than two months later, as a result of his lung cancer, on 11 April 2010. Plaintiff thereafter filed a claim with the Commission seeking death benefits based on Decedent's development of lung cancer through his asbestos exposure while working at SDC. Defendant conceded the compensability of Plaintiff's claim, but agreed to payments of only $30.00 per week, the statutory minimum under N.C. Gen.Stat. § 97-38, arguing that the statutory minimum payout is appropriate in this case.
The Full Commission found that Decedent's lung cancer was caused by the same exposure to asbestos that caused his asbestosis and awarded Plaintiff benefits equal to 66 2/3% of Decedent's average weekly wages for 400 weeks. The Commission determined Decedent's average weekly wages to be $606.36, articulating two alternative bases for its decision: (1) that the question concerning the manner of calculating Decedent's average weekly wages had been previously raised and addressed in its 24 August 1999 opinion and award, and Defendant was thus collaterally estopped from re-litigating the issue; and (2) that, even if collateral estoppel did not apply, the fifth of the five permissible methods of calculating average weekly wages under N.C. Gen.Stat. § 97-2(5) permitted the Full Commission to reach the same result — specifically, to calculate Decedent's average weekly wages based on his last full year of employment with SDC. From this opinion and award, Defendant appeals.
In reviewing an opinion and award of the Full Commission, this Court must determine whether competent evidence supports the Commission's findings of fact and whether those findings so supported are sufficient, in turn, to support the Commission's conclusions of law. Legette v. Scotland Mem'l Hosp., 181 N.C. App. 437, 442, 640 S.E.2d 744, 748 (2007), appeal dismissed and disc. review denied, 362 N.C. 177, 658 S.E.2d 273 (2008). Findings supported by competent evidence are binding on appeal, "even if the evidence might also support contrary findings. The Commission's conclusions of law are reviewable de novo." Id. at 442-43, 640 S.E.2d at 748 (citations omitted).
Defendant contends that the Commission erred in its computation of Decedent's average weekly wages for purposes of Plaintiff's death benefits claim and should have based Decedent's average weekly wages on the statutory minimum of $30.00 per week.
N.C. Gen.Stat. § 97-38 (2013) provides, in pertinent part, that death benefits are payable in weekly payments to a person "wholly dependent for support upon the earnings of the deceased employee
In the present case, the Commission applied the fifth method provided for under N.C. Gen.Stat. § 97-2(5), which provides as follows:
N.C. Gen.Stat. § 97-2(5) (2013). Our Supreme Court has provided the following guidance regarding the application of this fifth method:
McAninch, 347 N.C. at 130, 489 S.E.2d at 378 (citations omitted) (ellipsis in original).
Defendant essentially contends that the Full Commission should have determined that Decedent's average weekly wages were zero because this is the amount he "would be earning were it not for" his diagnosis for lung cancer and that it is not "fair and just" to Defendant to require it to pay benefits based on Decedent's final wages when Decedent had been retired for 19 years and had no earning capacity at the time of his 2010 diagnosis. Defendant argues that this case is controlled by our decision in Larramore v. Richardson Sports, 141 N.C. App. 250, 540 S.E.2d 768 (2000), a decision which was affirmed per curiam by our Supreme Court at 353 N.C. 520, 546 S.E.2d 87 (2001).
In Larramore, the Full Commission applied the fifth method found in N.C. Gen. Stat. § 97-2(5) in calculating the average weekly wages of a professional football player who had signed a contract with the Carolina Panthers but who never played a down for them due to an injury he suffered during tryouts which caused him not to make the roster. 141 N.C.App. at 252, 255, 540 S.E.2d at 769, 771. Specifically, the Commission calculated the injured player's average weekly wages to be $1,653.85 — the amount he would have made had he made the final roster — finding that this amount represents what the player "would be earning were it not for the injury." Id. at 255, 540 S.E.2d at 771.
We believe Larramore is distinguishable from the present case and that the present case is controlled by this Court's holdings in Abernathy v. Sandoz Chemicals, 151 N.C. App. 252, 565 S.E.2d 218, disc. review denied, 356 N.C. 432, 572 S.E.2d 421 (2002) and Pope v. Manville, 207 N.C. App. 157, 700 S.E.2d 22, disc. review denied, 365 N.C. 71, 705 S.E.2d 375 (2010). Unlike the present case, Larramore involved an employee who suffered an injury while "on the job." The issue of whether an individual was entitled to benefits for an injury which did not manifest until after retirement was not before our Court or the Supreme Court in Larramore.
In contrast to Larramore, but similar to the present case, Abernathy involved an individual who sought benefits for an occupational disease rather than an injury, which did not manifest until after the individual had retired. We affirmed the Commission's application of the fifth method, calculating the average weekly wage based on the individual's last year of employment, stating that "it would be obviously unfair to calculate plaintiff's benefits based on his income upon the date of diagnosis because he was no longer employed and was not earning an income." Abernathy, 151 N.C.App. at 258, 565 S.E.2d at 222.
Likewise, in Pope, this Court considered a situation where an individual sought benefits for asbestosis for which he was diagnosed well after he retired. This Court followed its prior holding in Abernathy and concluded that the Commission did not err in calculating the individual's average weekly wage based on what he earned during his work life rather than awarding the statutory minimum simply because he had retired before the diagnosis. Pope, 207 N.C.App. at 160-61, 700 S.E.2d at 25.
In the present case, based on the Full Commission findings and the stipulation by Defendant, Decedent's lung cancer, diagnosed in 2010, was an occupational disease. See Hatcher v. Daniel Int'l Corp., 153 N.C. App. 776, 781, 571 S.E.2d 20, 22 (2002) (holding that lung cancer may qualify as an occupational disease). Specifically, the Commission found as follows:
We further believe that the findings are adequate to reflect that the Full Commission considered the first four methods of calculating average weekly wages before deciding to apply the fifth method. Specifically, the Full Commission stated as follows:
We, therefore, hold that the findings by the Full Commission are sufficient to support the Commission's calculation method and, moreover, that the Commission correctly determined Decedent's average weekly wages to be $606.36, yielding a corresponding weekly compensation rate of $404.24. Based on our holdings in Abernathy and Pope, we believe that based on the facts of this case — where (1) Decedent was exposed to asbestos during his career at SDC, (2) he retired from SDC for a reason unrelated to any injury suffered at work, (3) after retirement he was diagnosed with lung cancer directly caused by his exposure to asbestos during his career at SDC, and (4) where he dies as a result of the lung cancer — the Full Commission did not err in calculating Decedent's average weekly wages based on the wages during the last year of employment at SDC rather than based on the statutory minimum. Defendant's contentions are accordingly overruled.
In light of the foregoing, we affirm the Commission's 30 September 2013 opinion and award.
AFFIRMED.
Chief Judge McGEE and Judge STEELMAN concur.