concurring in part and dissenting in part.
I join the majority in affirming the Commission’s opinion and award as to Plaintiff’s claims for lung cancer and pleural plaquing. I also agree that there is sufficient evidence that Argonaut was the responsible carrier with respect to Plaintiff’s laryngeal cancer and that we must remand for further findings and that we must reverse and remand on the issue of Plaintiff’s average weekly wage.
However, after careful review of the record, I believe the Commission’s determination that Defendant Argonaut was the responsible carrier for Plaintiff’s asbestosis was supported by competent evidence. Accordingly, I would affirm the Commission’s opinion and award as to Argonaut’s responsibility for Plaintiff’s asbestosis and the resulting damage to his lungs. To the extent that the majority holds otherwise, I respectfully dissent.
It is well settled in matters of worker’s compensation that “[t]he Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony,” and thus “courts may set aside findings of fact only upon the ground they lack evidentiary support.” Anderson v. Construction Co., 265 N.C. 431, 434, 144 S.E.2d 272, 274 (1965). This Court “does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding.” Id. at 434, 144 S.E.2d at 274.
The majority concludes that the record does not contain evidence-supporting the Commission’s finding that plaintiff was last injuriously exposed to asbestos for 30 days during a seven month period while Argonaut was the carrier on the insurance. In reaching this conclusion, the majority points to Plaintiff’s testimony before the Commission, where he denied working at the Kimberly-Clark plant in 1997. *50While Plaintiff did deny that he worked at the Kimberly-Clark plant in 1997, he also stated several times that he did not remember and indicated that if the job logs contradicted his statements he would rely on the logs rather than his memory. The majority acknowledges that logs from the Kimberly-Clark plant job in 1997 indicate that Plaintiff did work there at that time, but counters that those logs included employees who performed work at the actual job site as well as those performing work at one of A.C. Corporation’s shops.
The Commission was in the best position to examine Plaintiff’s testimony and the weight it should be accorded. Plaintiff’s testimony was contradictory, and he stated multiple times that he did not remember all of his jobs. Given that the job in question occurred more than ten years before the hearing, the Commission could competently have decided not to give Plaintiff’s testimony much weight, and instead relied on the job logs. Although David Friddle, Project Director at A.C. Corporation, testified that an employee’s name on a job log does not necessarily mean that employee was on site and not at an A.C. Corporation shop, certainly the employee’s name on the log is an indication that the employee was on-site. Thus, I would hold that the Commission had enough evidence from which to conclude Argonaut was the responsible carrier for Plaintiff’s asbestos. Because I would affirm the finding that Argonaut is the responsible carrier for Plaintiff’s asbestosis, it follows that I would hold Argonaut responsible for the damage to his lungs resulting from the asbestosis. Accordingly, I would also hold Argonaut liable for the entirety of the award of $40,000 for damage for Plaintiff’s lungs resulting from his asbestosis and lung cancer.