Opinion
I.C. NO. 834883
Filed 6 August 2003
The Full Commission reviewed this matter on March 13, 2002, upon appeal by defendant from an Opinion and Award by former Deputy Commissioner John A. Hedrick, filed on May 16, 2000. The case was heard before Deputy Commissioner Hedrick in Plymouth, North Carolina, on December 13, 1999.
Plaintiff: Wallace and Graham, Attorneys, Salisbury, North Carolina; Mona Lisa Wallace and Jill Calvert, appearing.
Defendant: Teague, Campbell, Dennis and Gorham, Attorneys, Raleigh, North Carolina; Thomas M. Clare and Tracey Jones, appearing.
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The Full Commission reviewed the prior Opinion and Award based upon the record of the proceedings before former Deputy Commissioner Hedrick and the briefs and oral arguments before the Full Commission. The appealing party has not shown good ground to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Opinion and Award, except for minor modifications. Accordingly, the Full Commission affirms the Opinion and Award of Deputy Commissioner Hedrick, with modifications.
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The Full Commission finds as fact and concludes as matters of law the following, which were entered by the parties as:
STIPULATIONS
1. The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Workers' Compensation Act at all relevant times.
2. Defendant was a duly qualified self insured.
3. An employee-employer relationship existed between the parties at all relevant times. The plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from December 28, 1965 until his retirement on May 10, 1999.
4. Plaintiff was last injuriously exposed to asbestos during plaintiff's employment with defendant, Weyerhaeuser Company, and specifically, that plaintiff was exposed to asbestos for thirty (30) days within a seven month period, as set forth in N.C. Gen. Stat. § 97-57.
5. Defendant has stipulated that plaintiff does suffer from an occupational disease, asbestosis, and further that he was diagnosed with asbestosis on December 9, 1997, by Dr. Darcey. The defendant further agrees that a member of the North Carolina Occupational Disease Panel confirmed this diagnosis and that these medical records are stipulated into evidence for consideration by the Industrial Commission.
6. Plaintiff's income during the fifty-two (52) weeks prior to his diagnosis on December 9, 1997, was $45,054.11.
7. Plaintiff contends that he is entitled to an award of a 10% penalty pursuant to the provisions of N.C. Gen. Stat. § 97-12, and the defendant stipulated that should the claim be found compensable, the defendant would agree by compromise to pay an amount of 5% of all compensation, exclusive of medical compensation, as an award of penalty pursuant thereto.
9. The parties further agreed that should the Commission determine N.C. Gen. Stat. §§ 97-60 through 97-61.7 to be unconstitutional, additional testimony could be offered by the parties on the issues of loss of wage earning capacity and/or disability.
10. The parties agreed that the only contested issues for determination are:
a. Does N.C. Gen. Statute 97-60 through 97-61.7 apply to plaintiff's claim for benefits, and regardless, are these statutes in violation of the Constitutions of the United States and North Carolina?
b. What benefits, monetary and/or medical, is plaintiff entitled to receive, if any?
11. The parties submitted to the Industrial Commission the medical records and reports of plaintiff by the following physicians:
a. Dr. Dennis Darcey
b. Dr. Fred M. Dula
c. Dr. James Johnson
d. Dr. Phillip Lucas
e. Dr. Robert Shaw
f. Dr. Robert A. Rostand
g. Dr. Allen Hayes
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Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following:
FINDINGS OF FACT
1. The plaintiff was employed by defendant, Weyerhaeuser Company, at its facility in Plymouth, North Carolina, from December 28, 1965, until his retirement on May 10, 1999.
2. Defendant manufactures paper and paper products, including paper for crafts, bags, boxes, and pulp for baby diapers. The approximate size of defendant's plant in Plymouth, North Carolina, is 3/4 of a mile long. The entire facility is built on approximately 350 acres and encompasses about 20 different buildings. The newest building was built in the 1960s and the vast majority of the insulation used in the original construction of the buildings contained asbestos. Steam-producing boilers are used at the facility, along with hundreds of miles of steam pipes covered with asbestos insulation. The heat coming off the steam pipes is used, among other things, to dry the wet pulp/paper.
3. The plaintiff has held several different job positions during his 34 years of employment with defendant. Throughout his employment, he was exposed to asbestos at various places throughout the plant.
5. Defendant never provided the defendant with any type of respiratory device to protect the plaintiff from exposure to asbestos.
6. Plaintiff was exposed to asbestos-containing materials on a regular basis for more than thirty working days or parts thereof within seven consecutive months from 1965 until the time of his retirement.
7. The following medical records confirming the diagnosis of asbestosis were submitted to the Industrial Commission by counsel for the parties:
a. The medical report of Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University, dated December 9, 1997. Dr. Darcey took an occupational history from the plaintiff who stated he was exposed to asbestos dust during the course of his 32 years of employment with the Weyerhaeuser Paper Company. While working for defendant, he worked primarily as a mechanic repairing trucks and tow motors. He also stated that he made custom asbestos brake shoes and worked on brakes and clutches that were composed of asbestos. During repairs and blow downs of the equipment, he was exposed to a fine dust, which he believes was contaminated with asbestos. He was not provided with a respirator or a dust mask.
b. It was the opinion of Dr. Darcey, and the Full Commission finds as fact, that plaintiff has a clinical diagnosis of asbestos-related pleural disease and asbestosis. His conclusion was based on plaintiff's history of exposure to asbestos with adequate latency to develop asbestosis; an ILO chest x-ray and B-read showing pleural changes consistent with asbestos exposure and interstitial changes consistent with asbestosis; and a high resolution CT scan of the chest showing interstitial changes consistent with mild asbestosis and emphysematous changes in the upper lobes.
c. Dr. Darcey also reported that plaintiff is at increased risk of developing lung cancer and mesothelioma as a result of his asbestos exposure, as opposed to non-exposed individuals. He recommended periodic monitoring for progression of asbestos-related disease, including pulmonary function testing and chest x-ray. Plaintiff is also to avoid any further exposure to asbestos dust.
d. A CT scan and chest x-ray dated September 27, 1997, interpreted by Dr. Fred M. Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader. It was his opinion, and the Full Commission finds as fact, that there was a somewhat ground-glass appearance to the lung parenchyma. There were a few focal interstitial changes seen including short, thickened interlobar lines extending to the pleural surfaces. In addition, there was mild bilateral pleural thickening, more evident on plain film than on CT. It was the overall impression of Dr. Dula that there were interstitial and mild bilateral pleural changes consistent with asbestosis in the appropriate clinical situation.
e. It was the opinion of Dr. Phillip H. Lucas, a NIOSH B-reader, who also evaluated the September 27, 1997, chest film, and the Full Commission finds as fact, that there were bilateral interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate exposure history and latent period.
f. Dr. Allen Hayes of Raleigh Internal Medicine also reviewed the September 27, 1997, chest film and indicated that there were parenchymal abnormalities consistent with pneumoconiosis present.
g. Dr. James Johnson of Piedmont Radiology in Salisbury, a B-reader, reviewed the September 27, 1997, chest x-ray and concluded there were parenchymal and pleural abnormalities present consistent with a pneumoconiosis.
h. Dr. Robert Shaw, a physician specifically assigned to medically monitor the employees of defendant, noted in his report dated September 29, 1998, that plaintiff-employee has small irregularities on his chest x-ray with a profusion rating of 0/1.
i. Plaintiff was examined by Dr. Robert A. Rostand, a member of the North Carolina Occupational Disease Panel, on December 18, 1998. Dr. Rostand examined plaintiff, his radiology reports, and medical records provided by the Industrial Commission. He also performed a pulmonary function test on plaintiff. It is Dr. Rostand's overall impression, and the Full Commission finds as fact, that plaintiff suffers from asbestos-related disease of lung and pleura. He reports that plaintiff has a well-documented history of occupational exposure to asbestos as well as radiographic evidence of asbestos-related disease of lung and pleura. It is also Dr. Rostand's opinion, and the Full Commission finds as fact, that plaintiff's occupational exposure to asbestos is the proximate cause of the radiological changes and that his last injurious exposure to asbestos occurred while employed at Weyerhaeuser. He reported that plaintiff's occupational exposure to asbestos has placed him at greater risk of developing asbestos-related disease of lung and pleura as compared to the general public. In addition, plaintiff is at an increased risk for developing lung cancer and mesothelioma as a result of his asbestos exposure compared to non-exposed individuals. Additionally, Dr. Rostand reported that plaintiff will require continued medical surveillance to monitor the possible progression of his asbestos-related disease of lung and pleura. He recommended periodic pulmonary function testing, chest x-ray, and CT scan of chest. Dr. Rostand also noted that plaintiff should not be employed in areas where he will have further exposure to asbestos-containing dust in the work environment.
8. The plaintiff does suffer from asbestosis as a result of his many years of asbestos exposure while employed by the defendant. His pulmonary impairment is permanent and likely to progress. Plaintiff would benefit from medical monitoring, evaluation, and some treatment in the future as a result of his asbestosis. Further, medical monitoring is reasonably necessary due to his increased risk of developing lung and other asbestos-related cancers.
9. In I.C. No. 038168 and other cases before the Industrial Commission involving this same defendant, Weyerhaeuser stipulated that all the procedures used in defendant's asbestos medical surveillance program at its facility in Plymouth, North Carolina, were consistent with those outlined as part of the North Carolina Dusty Trades Program contained in N.C. Gen. Stat. §§ 97-60 through 97-61.7. These procedures were in place during plaintiff's employment at the Plymouth facility. The Industrial Commission takes judicial notice of the facts so stipulated.
10. In I.C. No. 038168 and other cases before the Industrial Commission involving this same defendant, Weyerhaeuser stipulated that the medical monitoring procedures used in its asbestos medical surveillance program were the same in all Weyerhaeuser plants in the State of North Carolina. The Industrial Commission takes judicial notice of the facts so stipulated.
11. In I.C. No. 038168 and other cases before the Industrial Commission involving this same defendant, Weyerhaeuser stipulated that the Weyerhaeuser facilities that Mr. Joseph Wendlick referred to in his deposition transcript, which had been stipulated into evidence, included the facilities in North Carolina. The Industrial Commission takes judicial notice of the facts so stipulated.
12. The Industrial Commission also takes judicial notice of the transcript of Joseph Wendlick's testimony at civil trial, the curriculum vitae of Joseph Wendlick and other documentation produced by defendant in discovery in I.C. No. 000344.
13. In I.C. No. 000344 and other cases before the Industrial Commission, Weyerhaeuser stipulated that all the procedures used in Weyerhaeuser's asbestos medical surveillance program at its facility in Plymouth, North Carolina, were consistent with those outlined as part of the North Carolina Dusty Trades Program which defendant contends is contained in N.C. Gen. Stat. § 97-60 through N.C. Gen. Stat. § 97-61.7. Further, that these procedures were in place during plaintiff's employment at the Plymouth facility. The Industrial Commission takes judicial notice of the facts so stipulated.
14. In I.C. No. 000344 and other cases before the Industrial Commission, Weyerhaeuser stipulated that the medical monitoring procedures used in its asbestos medical surveillance program in all Weyerhaeuser plants in North Carolina were the same. The Industrial Commission takes judicial notice of the facts so stipulated.
15. In I.C. No. 000344 and other cases before the Industrial Commission, Weyerhaeuser stipulated that the Weyerhaeuser facilities to which Mr. Joseph Wendlick referred to in his deposition transcript which has been stipulated into evidence included the facilities in North Carolina. The Industrial Commission takes judicial notice of the facts so stipulated.
16. Defendant's Plymouth facility was found to have high levels of friable asbestos dust by its own Industrial Hygienist, Joseph Wendlick. As a result of Mr. Wendlick's findings, an asbestos medical monitoring program was initiated to comply with the dusty trade provisions of the N.C. Gen. Stat. § 97-60 through N.C. Gen. Stat. § 97-61.7.
17. Defendant, in lieu of participating in the North Carolina Dusty Trades Program as contained in N.C. Gen Stat. §§ 97-60 through 97-61.7, implemented its own asbestos medical surveillance program, which it asserts was consistent with the dusty trades statutory provisions. Defendant convinced the State of North Carolina that defendant need not be included in the state Dusty Trades Program since defendant's asbestos medical surveillance program served the same purpose. If defendant's medical surveillance program was in place during plaintiff's employment with defendant, then it is likely that plaintiff would have participated in the program by virtue of his employment with defendant.
18. Plaintiff may have relied upon defendant's representations to him and to his fellow employees that defendant's asbestos medical surveillance program would monitor his exposure to asbestos and would medically screen and monitor him for any signs of the development of asbestosis. In accordance with such program, plaintiff would have been seen by defendant's doctors on occasions throughout his employment with defendant, raising the possibility of discovery of plaintiff's asbestosis while he was still employed by defendant.
19. Plaintiff was likely not aware of his development of asbestosis until after he retired because defendant's medical surveillance program did not effectively monitor and track his development of asbestosis during his employment with defendant, that had defendant's program provided proper medical screening to inform plaintiff of his development of asbestosis, he would have been diagnosed with asbestosis while still in defendant's employ and thus subject to an order of removal and subsequent award. If plaintiff, to his detriment, relied upon the false representations of defendant in regard to its medical monitoring of plaintiff, then defendant may be equitably estopped from arguing that plaintiff is not entitled to the 104 week award pursuant to an order of removal. Additional evidence as to the elements of equitable estoppel would be required for the Commission to make a determination on the matter.
20. N.C. Gen. Stat. §§ 97-60 through 97-61.7 are constitutional.
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Based upon the foregoing stipulations and findings of fact, the Full Commission reaches the following:
CONCLUSIONS OF LAW
1. Plaintiff contracted the occupational diseases of asbestosis and asbestos-related pleural disease as a result of his employment with defendant. N.C. Gen. Stat. §§ 97-53(24) and 97-62.
2. Plaintiff was last injuriously exposed to the hazards of asbestos dust while employed by defendant, and for as much as 30 days or parts thereof, within seven consecutive months, which exposure proximately augmented his asbestosis. N.C. Gen. Stat. § 97-57; Clark v. ITT Grinnell Industrial Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369 (2000); Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275 (1942); Barber v. Babcock Wilcox Construction Company, 101 N.C. App. 564, 400 S.E.2d 735 (1991).
3. The provisions of N.C. Gen. Stat. § 97-60 et seq. are constitutional.
4. N.C. Gen. Stat. § 97-61.5 provides in pertinent part that following a first hearing determination by the Industrial Commission that a claimant has asbestosis, based upon either medical evidence or by agreement of the parties, the Commission "shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis . . ." and that upon removal the employee shall be entitled to "weekly compensation equal to sixty-six and two-thirds percent of his average weekly wages . . . which compensation shall continue for a period of 104 weeks."
5. The North Carolina Supreme Court determined that a retiree who is no longer employed by the asbestos-exposing industry is not entitled to an order of removal and the subsequent award because he no longer faces the possibility of exposure. See Austin v. General Tire, 354 N.C. 344, 553 S.E.2d 680 (2001). However, the instant case may be distinguishable from Austin in that plaintiff was likely not aware of his development of asbestosis until after he retired because defendant's medical surveillance program did not effectively monitor and track his development of asbestosis during his employment with defendant. Had defendant's program provided proper medical screening to inform plaintiff of his development of asbestosis, he might have been diagnosed with asbestosis while still in defendant's employ and, thus, subject to an order of removal and subsequent award. Plaintiff may have, to his detriment, relied upon the representations of defendant in regard to its medical monitoring of plaintiff. Thus, defendant may be equitably estopped from arguing that plaintiff is not entitled to the 104 week award pursuant to an order of removal.
The doctrine of equitable estoppel is a means of preventing a party from asserting a defense that is inconsistent with its prior conduct. Purser v. Heatherlin Properties, 137 N.C. App. 332, 337, 527 S.E.2d 689, 692 (2000), cert. denied, 352 N.C. 676, 545 S.E.2d 428 (2000) (citing Godley v. County of Pitt, 306 N.C. 357, 360, 293 S.E.2d 167, 169 (1982)). In particular, the rule is grounded in the premise that `it offends every principle of equity and morality to permit a party to enjoy the benefits of a transaction and at the same time deny its terms or qualifications.' Id. (quoting Thompson v. Soles, 299 N.C. 484, 487, 263 S.E.2d 599, 602 (1980)). The law of estoppel applies in workers' compensation cases, and may be used to ensure coverage of a work-related injury. Id. (citing Carroll v. Daniels and Daniels Constr. Co., Inc., 327 N.C. 616, 620, 398 S.E.2d 325, 328 (1990).
Defendant's argument to the effect that estoppel was raised too late in this case is to no avail. In Purser v. Heatherlin Properties, supra, the doctrine was raised for the first time by the Court of Appeals itself ex meru moto.
In Belfield v. Weyerhaeuser Co., 77 N.C. App. 332, 335 S.E.2d 44 (1985), the North Carolina Court of Appeals held that equitable estoppel was appropriate to prevent an employer from raising a time limitation when the employer misrepresented to the employee that his rights under the Workers' Compensation Act were being exercised on his behalf by the employer. See Id. at 337, 47. The court stated:
The commonest type of case is that in which a claimant, typically not highly educated, contends that he was lulled into a sense of security by statements of employer or carrier representatives that `he will be taken care of' or that his claim has been filed for him or that a claim will not be necessary because he would be paid compensation benefits in any event. When such facts are established by the evidence, the lateness of the claim has ordinarily been excused.
Id. (quoting 3 A. Larson, The Law of Workmen's Compensation, Section 78.45 at 15-302 through 15-305 (1983)). In the case before the Commission, defendant similarly seeks to argue that the 104 week award pursuant to an order of removal is not timely because plaintiff was not diagnosed until after he retired. However, this Commission will not permit defendant to use a time limitation defense if there is evidence suggesting that defendant's own medical surveillance program failed to detect plaintiff's development of asbestosis while he was still in defendant's employ, or failed to disclose to plaintiff that he had developed asbestosis when defendant had knowledge thereof. Such acts may inequitably prevent plaintiff from receiving an order of removal and subsequent award that he otherwise deserved. For these reasons, defendant may be equitably estopped from arguing as to the timeliness of plaintiff's order or removal and subsequent award. Evidence as to the elements of estoppel is required before the Commission can make a determination on the matter. Therefore, this issue must be held in abeyance pending the presentation of such evidence.
6. Plaintiff is entitled to payment of all medical expenses incurred or to be incurred as a result of his asbestosis and asbestos related pleural disease for so long as such examinations, evaluations and treatments tend to affect a cure, give relief or lessen his disability. N.C. Gen. Stat. § 97-25; N.C. Gen. Stat. § 97-59.
7. Plaintiff is entitled to undergo subsequent examinations as provided by law, pursuant to the provisions of N.C. Gen. Stat. §§ 97-61.1 et seq. and is further entitled to any additional benefits due to plaintiff which shall be determined after additional examinations and hearings.
8. Plaintiff's claim for attorney's fees from defendant on the ground that defendant unreasonably defended this claim pursuant to N.C. Gen. Stat. § 97-88.1 is hereby held in abeyance until the final award is issued in this claim.
9. This claim must be remanded to a deputy commissioner for further hearing on the issue of estoppel, and for further hearing (if necessary) following subsequent examinations as required under N.C. Gen. Stat. § 97-61 et seq. Plaintiff's eligibility for further compensation in addition to medical and any other issues in controversy are hereby held in abeyance pending the outcome of further hearings.
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Based upon the foregoing findings of fact and conclusions of law, the undersigned enters the following:
AWARD
1. Defendant shall pay all medical expenses incurred or to be incurred by plaintiff as a result of her asbestosis and asbestos related pleural disease for so long as such examinations, evaluations and treatments tend to affect a cure, give relief or lessen her disability.
2. Plaintiff shall undergo additional examinations as provided by law.
3. The Commission hereby retains jurisdiction in this matter to address the issue of permanent impairment, as plaintiff has not undergone the additional panel examination as required by law for such determination. Upon completion of such examinations, should the parties be unable to agree on what additional compensation, if any, is due, the parties may request a hearing before this Commission on this matter.
4. The Commission additionally retains jurisdiction in this matter to address the issue of equitable estoppel, as raised by plaintiff, as a means of awarding to plaintiff the 104 week award pursuant to N.C. Gen. Stat. § 97-61.5.
5. Defendant shall pay the costs of this proceeding.
*********** ORDER REMANDING
This claim is hereby remanded to a deputy commissioner for further hearing (if necessary) following subsequent examinations as required under N.C. Gen. Stat. § 97-61 et seq. Plaintiff's eligibility for further compensation under the Act beyond the medical compensation awarded herein and any other issues in controversy including equitable estoppel are hereby held in abeyance pending the outcome of further hearings.
This 11th day of October 2002.
S/_____________ THOMAS J. BOLCH COMMISSIONER
CONCURRING:
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
DISSENTING:
S/_______________ DIANNE C. SELLERS COMMISSIONER
For the reasons stated below, I respectfully disagree with the majority decision to remand this case to reconsider an order of removal and payment of 104 weeks of benefits under an estoppel theory.
NECESSARY ELEMENTS FOR ORDER OF REMOVAL/104 WEEKS
Removal from employment under § 97-61.5 requires a finding of at least two conditions: (1) that the plaintiff has a compensable claim for asbestosis; and (2) that plaintiff is currently employed (at the time of the "hearing after first [panel] examination") in a position that causes harmful exposure to asbestos. See Austin v. Continental General Tire, 141 N.C. App. 397, 415, 540 S.E.2d 824, 835 (2000) (J. Greene, dissenting), reversed and adopting dissenting opinion, 354 N.C. 334, 553 S.E.2d 680 (2001); Moore v. Standard Mineral Company, 122 N.C. App. 375, 469 S.E.2d 594 (1996). On the issue of removal, § 97-61.5(b) specifically provides:
"If the Industrial Commission finds at the first hearing that the employee has asbestosis or if the parties enter into an agreement to the fact that the employee has asbestosis, it shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis "
[Emphasis added] Although the parties have stipulated that plaintiff has asbestosis, plaintiff has not met the second condition, and indeed has presented no evidence to prove that his occupation currently exposes him "to the hazards of asbestosis." Moreover, the evidence is that plaintiff retired from his employment with defendant in 1999. Thus, plaintiff has not established that he is entitled to an order of removal. Further, only an appropriate order of removal, that actually removes plaintiff from his current employment in the industry, triggers the payment of 104 weeks of benefits. See Clark v. ITT Grinnell, 141 N.C. App. 417, 539 S.E.2d 369, remanded for reconsideration, 354 N.C. 572, 558 S.E.2d 867 (2002); Austin, 141 N.C. App. at 415; Moore, supra (removal from industry by directive of Commission); N.C. GEN. STAT. § 97-61.5(b) (if employee is removed from industry ).
The application of the statutory provision regarding removal and subsequent payment of 104 weeks has a practical purpose and historical significance. By way of an explanation, employees in a dusty trade are entitled to a dusty trade card only after passing a chest x-ray screening, and for as long as their yearly chest x-rays remain clear. Upon a finding of asbestosis after clinical examination (the first panel examination), the employee's dusty trade card is revoked, prohibiting his continued employment in the dusty trade industry. The diagnosis of asbestosis and evidence of current hazardous exposure to asbestos thereby trigger an order of removal and the second and third panel examinations during which time the 104 weeks of benefits is paid. The length of the 104-week period is significant in the statutory scheme of the panel examinations. A 52-week period exists between the first and second panel examinations and another 52-week period exists between the second and third panel examinations. This accounts for the 104 weeks of benefits which are provided as a "safety net" for an employee who is suddenly prohibited from further employment in the dusty trade industry where the employee is currently hazardously exposed and whose final disability determination will not be made until after the third panel examination. Although § 97-61.5 has now been extended by the courts to non-dusty trade employment, the same principles apply. The 104 weeks of benefits is intended to compensate the employee who suddenly is prohibited from continuing in his current employment because it exposes him to the hazards of asbestos. Thus, evidence of plaintiff's current exposure to the hazards of asbestos is a critical element to be established prior to an order of removal and payment of 104 weeks of benefits.
Plaintiff has the burden of proof on the issue of current exposure to the hazards of asbestos. While plaintiff is not required to provide scientific proof of his current exposure to asbestos for purposes of § 97-61.5(b), nevertheless he must prove current exposure by the greater weight of the competent evidence. See Austin, 141 N.C. App. at 404. The Austin Court did not hold, as plaintiff suggests in this case, that plaintiff is entitled to removal without establishing that he is currently exposed to the hazards of asbestos; i.e.: that he is employed in an industry that actually exposes him to the hazards of asbestos. Further, § 97-61.5(b) compels removal from "hazardous exposure" to asbestos, not merely because a facility may have asbestos present, but because asbestos is present in such a form as it can be inhaled, i.e. friable. Asbestos that is non-friable, encapsulated, or in other form such that it would not be inhaled and therefore not cause or contribute to asbestosis is not, while in that form, a "hazardous" exposure. Thus, plaintiff must present evidence that there is asbestos in the facility that currently presents a hazardous exposure to him while working. See Austin, 141 N.C. App. at 415.
Plaintiff has not presented any evidence that his employment with defendant currently exposes him to the hazards of asbestos. The parties stipulated that plaintiff last worked for defendant on May 10, 1999. The undisputed evidence is that plaintiff retired in 1999, almost 3 years before the "hearing after first examination." Thus, there is no evidence that plaintiff is currently employed with defendant, let alone that the employment is currently hazardous. The majority finds in Finding of Fact No. 6, "[p]laintiff was exposed to asbestos-containing materials on a regular basis for more than thirty days or parts thereof within seven consecutive months from 1965 until the time of his retirement." However, there is no evidence, stipulation, or reasonable inference to support the finding that plaintiff is currently, hazardously exposed to asbestos in employment with defendant. The majority correctly finds in Finding of Fact Nos. 1 and 7(i) that plaintiff was last employed on May 10, 1999, and that his first panel examination occurred on December 18, 1998. The hearing after first panel examination did not occur until March 13, 2002. The parties also stipulated that plaintiff was last injuriously exposed (30 work days inside of seven consecutive months) to asbestos while employed by defendant. These findings and stipulation taken together, however, do not support the necessary element under § 97-61.5(b) to establish that plaintiff at the present time is hazardously exposed in his employment with defendant. The stipulation does not define when during the thirty-some years of employment plaintiff was last exposed to the hazards of asbestos, and more significantly, does not state that plaintiff is currently exposed to the hazards of asbestos. Thus, there is no evidence to support an essential element of plaintiff's claim under § 97-61.5(b).
The "first hearing" expressed in § 97-61.5 occurred on March 13, 2002.
The majority refers to the civil court testimony from Joseph Windlick a certified industrial hygienist who was formerly employed by Weyerhaeuser. Although his testimony includes recorded measurement of asbestos fiber exposure in several activities at the Weyerhaeuser paper plants, this testimony is confined to the time periods prior to the Weyerhaeuser abatement program that started in 1973. Mr. Windlick was asked about the changes in the air sampling from the pre-abatement to the post-abatement period, however, the court sustained an objection to this testimony and it was not received in evidence. Thus, Mr. Windlick's testimony is silent on the level of exposure, if any, to asbestos after the abatement. And, his testimony of pre-abatement exposure is not evidence of the current conditions at the Weyerhaeuser plants.
PLAINTIFF'S § 97-57 ARGUMENT IS MISPLACED
Rather than presenting evidence of current exposure to the hazards of asbestos in her employment, plaintiff suggests that the stipulation, made pursuant to § 97-57, that plaintiff was exposed to asbestos for 30 days within a seven-month period, presents an irrebuttable presumption that plaintiff was exposed to asbestos in the last 30 days of his employment. Plaintiff's reliance on § 97-57 to determine current exposure is misplaced because § 97-57 is not applicable for determining current exposure. Section 97-57 determines liability for "last injurious exposure" when there is a series of defendants, all of whom are potentially liable because their employment caused plaintiff to be exposed to the hazards of asbestos. Defendant's stipulation to "last injurious exposure" merely indicates that, should plaintiff successfully establish a compensable claim for § 97-61.5(b) benefits, then defendant is the liable employer. Section 97-57 does not abrogate plaintiff's burden to prove the elements of his case, including but not limited to, the elements for removal and the award of 104 weeks under § 97-61.5(b).
The stipulation of the parties reads:
"It is stipulated that the Plaintiff-Employee was last injuriously exposed to asbestos during Plaintiff's employment with Defendant-Employer Weyerhaeuser Company, and specifically, that the Plaintiff-Employee was exposed to asbestos for thirty (30) days within a seven month period, as is required by N.C. Gen. Stat. § 97-57."
Plaintiff's argument arises from a misinterpretation of the Court of Appeals' decision in Barber v. Babcock Wilcox Construction Company, 101 N.C. App. 564, 400 S.E.2d 735 (1991) and the North Carolina Supreme Court's decision in Fetner v. Rocky Mount Marble Granite Works, 251 N.C. 296, 111 S.E.2d 324 (1959). Both of these cases deal with the issue of "last injurious exposure" for purposes of determining the particular defendant liable for benefits. Plaintiff misapplies § 97-57 to abrogate plaintiff's burden of proof with regard to current exposure when § 97-57 is only applicable after plaintiff has carried all of the threshold burdens of proof for compensability of his disease. Section 97-57, in and of itself, does not remove plaintiff's burden to prove a necessary element of his § 97-61.5(b) claim; i.e.: current exposure to the hazards of asbestos. Furthermore, as these cases dealt with dusty trade defendants whose facilities continued to cause current exposure, whether there was "current exposure" was not an issue in controversy and therefore not a litigated issue in these cases.
Plaintiff has misinterpreted the Barber decision. Plaintiff, out of context, quotes Barber to find that § 97-57 "creates an irrebuttable legal presumption that the last 30 days of work is a period of last injurious exposure." See Barber 101 N.C. App. at 565. The issue in Barber was whether plaintiff who was only employed for forty-eight days at the second of two employers nevertheless had to establish that his exposure to asbestos was "injurious." The Court of Appeals correctly applied § 97-57 and explained "[i]n light of the irrebuttable legal presumption that the last thirty days of work subjecting the plaintiff to the hazards of asbestos is the period of last injurious exposure and the Commission's holding that plaintiff was exposed to the inhalation during the forty-eight days he worked for the defendant, such exposure must be deemed injurious." Id. at 566 [emphasis added]. However, contrary to plaintiff's argument in the instant case, the Court of Appeals in Barber did not find that a plaintiff did not have to establish current exposure to asbestos for purposes of removal; rather, the Court of Appeals explained that the plaintiff did not have to prove that his exposure to asbestos was "injurious" because § 97-57 creates a presumption that 30 days of exposure within seven months is "injurious." Id. at 566. Further, the Court in Barber did not find evidence of exposure in the last 30 days of employment based on a presumption. In fact, the Barber court had evidence of record to determine that plaintiff was exposed to asbestos during the forty-eight days that he worked for defendant. Id.
Similarly, the Supreme Court's decision in Fetner does not support plaintiff's argument that a stipulation of "last injurious exposure" is equivalent to a stipulation of current exposure. See Fetner v. Rocky Mount Marble Granite Works, 251 N.C. 296, 111 S.E.2d 324 (1959). In Fetner, a dusty trades case, the issue was whether the exposure with a third employer for whom plaintiff only worked for eleven months was "injurious" when plaintiff was diagnosed with silicosis before he went to work for the third employer. In this case, plaintiff was diagnosed with silicosis on March 4, 1949, when he was working for the first employer, and his dusty trade card was revoked after his diagnosis. On August 10, 1950, plaintiff requested permission from the Industrial Commission to waive compensation and to go to work for the second employer. Plaintiff worked for the second employer from July 26, 1950 to October 19, 1950. Plaintiff then went to work for a third employer from November 4, 1950 to September 29, 1951. No waiver of compensation was sought for plaintiff's employment with the third employer, thereby raising the issue of whether the eleven-month employment with the third employer was "injurious" in light of the prior diagnosis of silicosis and prior revocation of plaintiff's dusty trade card based on that diagnosis. In examining the liability of the third employer, the Supreme Court held that the Commission may not arbitrarily select any thirty-day period of employment, but must select the last 30 days within a seven-month period during which the plaintiff was last exposed, as the period of "last injurious exposure." Fetner, 251 N.C. at 301. Moreover, the Supreme Court did not relieve plaintiff of the burden to present evidence on the period of hazardous exposure. Id. Competent evidence was presented and findings were made to determine when plaintiff was last exposed to the hazards of silica.
Contrary to the suggestion of plaintiff, the Fetner and Barber decisions do not abrogate the requirement of plaintiff to establish by the greater weight of the competent evidence the period of hazardous exposure. Rather, these decisions hold that § 97-57 creates for purposes of liability among two or more defendants, where plaintiff proved hazardous exposure, an irrebuttable presumption that exposure for at least 30 days during a seven-month period is an "injurious exposure." In light of the stipulation of the parties and the lack of evidence of other hazardous employment, this issue is not present in this case; the defendant has stipulated that plaintiff's "injurious exposure" occurred during his employment with defendant.
Further, the plaintiff's illogical argument that the last thirty days of employment was injurious, without producing evidence of exposure to any asbestos during this thirty-day period, directly violates the Supreme Court's holding in Fetner that the Commission may "not arbitrarily select any thirty days of employment." Fetner, 251 N.C. at 300, 111 S.E.2d at 327. The relevant period under § 97-57 is the "last thirty days of employment while exposed to silica [asbestos] dust ." Fetner, 251 N.C. at 300, 111 S.E.2d at 327. Without evidence of current exposure to asbestos, the Commission cannot find that plaintiff has met the second element of his claim, entitling him to an order of removal, which when accomplished triggers the award of 104 weeks of benefits. See Austin, 141 N.C. App. at 145; N.C. GEN. STAT. § 97-61.5(b).
Further, the Barber and Fetner cases were only in litigation due to the apparent inequity resulting from the strict application of § 97-57 designating liability on the last hazardous employment and did not arise from any disagreement concerning "current exposure." For example, liability must be placed on the last employer where the plaintiff has been exposed to the hazards of asbestos for as little as 30 days even when a prior employer may have hazardously exposed plaintiff to asbestos for more than twenty years. However, an employer who escapes liability in one case despite long exposure may be the last, short-term employer in the next case. Thus, taken from a broad view, the statute is equitable, and is consistent with the goal of the Legislature to promote judicial economy. See N.C. GEN. STAT. § 97-57.
REMOVAL FROM HAZARDOUS WORK
Plaintiff asks the Commission to remove plaintiff from employment with defendant when plaintiff is not currently employed with defendant and there is no competent evidence that employment would currently subject plaintiff, or others who actually work there, to the hazards of asbestos. An order of removal, which is a prerequisite to § 97-61.5(b) award of 104 weeks of benefits, is a legal nullity unless the plaintiff is actually working in an employment that creates a hazardous exposure to asbestos. Only an appropriate order of removal, that actually removes plaintiff from his current employment in the industry, triggers the payment of 104 weeks of benefits. See Clark v. ITT Grinnell, 141 N.C. App. 417, 539 S.E.2d 369, remanded for reconsideration, 354 N.C. 572, 558 S.E.2d 867 (2002); Austin, 141 N.C. App. at 415; Moore, supra (removal from industry by directive of Commission); N.C. GEN. STAT. § 97-61.5(b) (if employee is removed from industry).
The question of current exposure to asbestos as a condition precedent to the award of 104 weeks of benefits was recently addressed by the Court of Appeals in Abernathy . See Abernathy v. Sandoz Chemical, 151N.C. App. 252, 565 S.E.2d 218, review denied, 356 N.C. 432, 572 S.E.2d 421 (2002). In Abernathy, the plaintiff was represented by the same firm who represents plaintiff in this case. The Court of Appeals' opinion notes that the parties agreed that the Commission's award of 104 weeks of benefits was in error when the employee had retired and thereby was not currently engaged in employment that exposed him to the hazards of asbestos. Despite this concession before the Court of Appeals, plaintiff's counsel has not abandoned this argument before the Industrial Commission in this case, and insists that employees who are retired (such as the instant case), as well as those who are currently employed in positions where there is no evidence of current exposure to the hazards of asbestos, are entitled to removal and the 104 weeks of benefits. Further, plaintiff argues before the Commission that Austin does not require plaintiff to prove current exposure to the hazards of asbestos; however, Judge Greene's dissenting opinion, adopted by the Supreme Court, clearly states:
"An employee who is no longer employed in a position that causes harmful exposure need not be `removed' from his employment."
This position was also expressed by the former Chairman of the Industrial Commission, William H. Stephenson when he testified:
Isn't it, sir, only when the individual is being further exposed to asbestos that he has to leave that employment and go to another?
That's correct.
Deposition testimony of William H. Stephenson in I.C. No. 902274, Goddard v. Weyerhaeuser, at page 49.
Austin, 141 N.C. App. at 415, 540 S.E.2d at 835. Judge Greene's statement is consistent with the express language of the Act requiring the Commission to order removal from "any occupation that exposes him to the hazards of asbestos". If the employee is not exposed to the hazards of asbestos, there is no hazardous employment from which to order the removal and the order of removal would be a legal nullity and, hence, could not trigger an award for 104 weeks of compensation.
Plaintiff also suggests that the stipulation of the parties also requires the Commission to enter an order of removal. The stipulation states: "The parties agreed further that should plaintiff be awarded compensation pursuant to N.C. Gen. Stat. § 97-61.5(b) the Deputy Commissioner may include language removing plaintiff from further exposure pursuant to N.C. Gen. Stat. § 97-61.5(b)." This stipulation is contingent on a finding that "plaintiff be awarded compensation pursuant to N.C. Gen. Stat. § 97-61.5(b)" and does not otherwise abrogate the requirements of the Commission to comply with § 97-61.5(b) of the Act.
To trigger the award of 104 weeks of benefits the order of removal must cause plaintiff to be removed from the industry. In Moore, the court stated:
"the language regarding `removal from the industry' has specific application only to occasions when identified victims of occupational disease are thereafter `removed' from a hazardous industry by directive of the Commission."
Clark, 539 S.E.2d at 376, citing, Moore, 469 S.E.2d at 596. The majority's remand to consider an order of removal ignores the statutory mandate that plaintiff is to be actually removed from his employment with defendant. At best, an order of removal would be a legal nullity because there is no evidence that plaintiff is employed at all, let alone in an occupation that further exposes him to the hazards of asbestos. Moreover, since the order of "removal" cannot, and will not, in fact, remove plaintiff from his employment, let alone the industry, as plaintiff left employment before any directive of the Commission, a subsequent order of removal will not trigger the award of 104 weeks of benefits. Moore, 469 S.E.2d at 596; Austin, 141 N.C. App. at 415; Abernathy , supra; N.C. GEN. STAT. § 97-61.5(b).
The prerequisites for the order of removal are:
diagnosis of asbestosis or silicosis; and, current employment that exposes plaintiff to the hazards of asbestosis or silicosis.
N.C. GEN. STAT. § 97-61.5(b). The award of 104 weeks of benefits requires that plaintiff additionally prove a third element:
that the employee is removed from the industry at the directive of the Commission.
Id.; Moore, 469 S.E.2d at 596; Clark, 539 S.E.2d at 376.
The statutory mandate is for the Commission to determine "removal" and the award of 104 weeks of benefits at the "first hearing" after the panel examination. N.C. GEN. STAT. § 97-61.5. If plaintiff, as in this case, is not employed in a position that causes harmful exposure at the time the Full Commission hold the "hearing after first [panel] examination" the removal and benefit provisions of § 97-61.5(b) are not applicable. See Abernathy, 565 S.E.2d at 257; Austin, 540 S.E.2d at 835-36; N.C. GEN. STAT. § 97-61.5. The benefits are for removal from "hazardous industry by a directive of the Commission." Clark, 539 S.E.2d at 376, citing, Moore, 469 S.E.2d at 596.
NO EVIDENCE TO SUPPORT EQUITABLE ESTOPPEL
The evidence in this case consists of several medical depositions, stipulated medical records, stipulated testimony from other proceedings, and the hearing agreement of the parties. The majority, however, would have the Commission decide this case on argument of counsel that is not supported by the record. There is no evidence before the Commission in this case to support the findings of the majority made in Findings of Fact Nos. 17, 18, and 19. These "findings" come solely from suggested argument of counsel for plaintiff. No evidence was presented to support the "findings" made by the majority. The argument of counsel is not evidence.
In other opinions adopting the "estoppel" argument, the majority has stated: "At the hearing before the Full Commission, counsel for plaintiff represented that plaintiff relied upon defendant's representations to him and his fellow employees that defendant's asbestos medical surveillance program would monitor his exposure to asbestos and would medically screen and monitor him for any signs of the development of asbestosis." Since the majority has reviewed my dissenting opinions, the more recent majority opinions, such as this case, state: "Plaintiff may have relied upon defendant's representations to him and his fellow employees that defendant's asbestos medical surveillance program would monitor his exposure to asbestos and would medically screen and monitor him for any signs of development of asbestosis." Although the change in language removes the fact that the "finding" comes from argument of counsel, the findings of the majority are still based on an assumption, rather than evidence of record.
A major assumption in the plaintiff's argument, which has been blindly accepted by the majority, is that the defendant's voluntary medical monitoring program excluded its employees from coverage in the State's mandatory "dusty trades" medical monitoring program. The evidence, however, does not support the conclusion that Weyerhaeuser's implementation of a monitoring program caused Weyerhaeuser to be excluded from the dusty trades monitoring program.
In particular, the majority improperly finds in Finding of Fact No. 17: "Defendant convinced the State of North Carolina that defendant need not be included in the state Dusty Trades Program since defendant's asbestos medical surveillance served the same purpose."
On this issue, plaintiff submitted the testimony of William H. Stephenson, which was taken in I.C. No. 902274 and is included in the stipulated exhibits in this action. Mr. Stephenson is the former Chairman of the Industrial Commission who has held numerous positions with this agency from 1948 through 1990, and subsequently has served on the advisory board of this agency. Mr. Stephenson explained that the Industrial Commission originally administered the dusty trade program until 1943 when the industrial hygienist at the Commission, and the program, was transferred to the State Board of Health. Mr. Stephenson explained that the State Board of Health would notify the Industrial Commission that a particular employer employed persons in a hazardous environment that exposes them to the hazards of asbestos and/or silica and that the Industrial Commission could then declare the employer to be a "dusty trade" subject the dusty trades monitoring program. The Industrial Commission relied on the State Board of Health to determine the industries and employers that were subject to this program. The Industrial Commission has never been designated Weyerhaeuser a dusty trade and this determination is made by the Commission, upon the advice of the State Department of Health, not the employer.
On the issue of whether the Industrial Commission could or would have designated Weyerhaeuser a dusty trade, Mr. Stephenson testified:
Q. Is it your testimony that the industrial commission could or would have designated Weyerhaeuser as a dusty trade if the commission had been advised that Weyerhaeuser was conducting these annual examinations and all which are documented in the exhibit?
A. The commission would have designated Weyerhaeuser a dusty trade if the commission had been advised by the state board of health that the [asbestos] dust was present as evidenced in this documents.
A. If the commission had known that the dust levels were as indicated here by the industrial hygienist that I believe was employed by Weyerhaeuser, the commission would have asked the state board of health to do their own industrial hygiene survey.
Mr. Stephenson testified that Weyerhaeuser did not fail to perform any obligation that they had under the Act. To the contrary, Weyerhaeuser did more than the State required by adopting its own monitoring program and submitting chest x-rays to the State for review. The State Department of Health was clearly aware of Weyerhaeuser's circumstance through the review of the chest x-rays, however, the Department of Health never requested the Industrial Commission to add Weyerhaeuser to the Dusty Trade list. There is no evidence that the voluntary acts of Weyerhaeuser of monitoring its employees and submitting their x-rays for review by the State Board of Health precluded the Industrial Commission from declaring Weyerhaeuser a "dusty trade" or that defendant otherwise "convinced" the State that it did not have to be subject to this regulation.
The medical evidence submitted to the Full Commission suggests that plaintiff was in a medical monitoring program from 1988 until his retirement. A September 29, 1988, medical surveillance report indicates that plaintiff's chest x-ray revealed a 0/1 profusion level with small irregularities that was read to not show asbestosis. In addition, the pulmonary function studies showed no restrictive disease with a mild airflow obstruction. The 0/1 profusion level and absence of restrictive disease from pulmonary function testing is not consistent with the differential diagnosis of asbestosis. The Diagnosis of Nonmalignant Diseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). Because the medical monitoring performed by defendant on plaintiff, which the parties have stipulated was consistent with the State Dusty Trades program, did not produce medical findings that would preclude plaintiff from receiving his dusty trades card and continuing in employment there is no evidence to support the conclusion that the Dusty Trades program would have excluded plaintiff from continued employment, or otherwise would have protected plaintiff. To the contrary, the evidence is that plaintiff was monitored and that the monitoring did not report, during his employment, that plaintiff needed to be removed from employment.
The medically recognized standard requires a minimum reading of a 1/1 profusion. The Diagnosis of Nonmalignant Diseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). The evidence relied upon by the majority discussing Weyerhaeuser's implementation of their medical monitoring program directed Weyerhaeuser to send the chest x-rays to the State Dusty Trades program (department of health) for reading. It is therefore likely that the 0/1 profusion level recorded by Dr. Shaw comes from the reading performed by the State. The evidence also reveals that Dr. Hayes, a certified B-reader, read the same film to reveal a 0/1 profusion level. In contrast, Dr. Dula, and other physicians selected by plaintiff have read the films to show a higher profusion rating.
The medically recognized standard for diagnosis of asbestosis looks for evidence of restrictive disease. The Diagnosis of Nonmalignant Diseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). In contrast, obstructive disease, such as that found in plaintiff, is consistent with cigarette smoking and emphysema, and is not associated with asbestos-related disease.
Inappropriately, the majority has chosen to decide this case based on the unsupported argument of plaintiff's counsel rather than to review the evidence of record.
104 WEEKS NOT APPROPRIATE COMPENSATION FOR PLAINTIFF
Plaintiff also suggests that in order to provide compensation within the intent of the Act, the award of 104 weeks is necessary. Plaintiff's argument, however, fails to recognize that plaintiffs, who though they are not currently exposed to the hazards of asbestos and thus entitled to 104 weeks of benefits because of removal, are afforded relief for their diagnosed disease under other statutory provisions. In fact, pursuant to § 97-64, a disabled plaintiff is entitled to recover benefits under §§ 97-29, 97-30, or 97-31. Abernathy, supra; Clark, 141 N.C. App. at 428-429; see Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952) (entitled to ordinary compensation under the general provisions of the Act). The fallacy of plaintiff's argument was explained in Clark:
. . . defendants also contend that "most importantly, the payment of one hundred four weeks of compensation is reserved to those employees who are actually removed from their employment." (Emphasis added). This Court addressed the removal requirement in Moore v. Standard Mineral Co., 122 N.C. App. 375, 469 S.E.2d 594 (1996).
[T]he term "removal" as used by G.S. § 97-61.5 presumed medical diagnosis will occur during the hazardous employment. Thus the language regarding "removal from the industry" has specific application only to occasions when . . . identified victims of occupational disease are thereafter "removed" from hazardous industry by a directive of the Commission. However, the phrase is inapposite to instances as that sub justice wherein a claimant is diagnosed at some point subsequent to leaving hazardous employment.Id. at 378, 469 S.E.2d at 596. . . .
Clark 141 N.C. App. at 428-29. Although Moore and other decisions have questioned appropriate compensation for employees who are not entitled to removal, the Court, in Clark, explained that the Act, as amended, expressly provides workers' compensation benefits for employees who suffer from the occupational disease of asbestosis:
Even, Judge Greene, in Austin, wrote:
"I acknowledge the `removal' requirement of section 97-61.5(b) raises concerns regarding whether an employee who chooses to remove himself from employment prior to diagnosis of asbestos should be precluded from receiving 104 weeks of compensation under section 97-61.5(b). For example, this statute may encourage employees who are exposed to asbestos to remain in their employment until they receive a diagnosis of asbestosis. These concerns, however, should not be resolved by this Court; rather, the proper forum for addressing these concerns is in the Legislature."
Austin, 540 S.E.2d at 836. This inquiry, however, does not remove the requirement explained by the Supreme Court that the removal from hazardous employment must occur at the "directive of the Commission." Moore, 569 S.E.2d at 596.
The general rule for recovery for individuals suffering from asbestosis or asbestos-related disorders is found at N.C. Gen. Stat. § 97-64 (1991), which provides:
Except as herein otherwise provided, in case of disablement or death from silicosis and/or asbestosis, compensation shall be payable in accordance with the provisions of the North Carolina Workers' Compensation Act.
Clark 141 N.C. App. at 428-29; see Abernathy, supra. Thus, because the Act does in fact provide benefits to disabled plaintiffs with asbestosis who are not currently exposed to the hazards of asbestos and consequently are not entitled to 104 weeks of benefits, and because there is no sound policy reason to extend the application of § 97-61.5 beyond its express and intended purpose, there is no basis to award § 97-61.5(b) benefits in this case.
The majority inappropriately cites Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952), for the proposition that the 104 weeks of compensation has the additional purpose to compensate the employee for the incurable nature of the disease. This finding arises from plaintiff's suggestion that the waiver provision of § 97-61.7 allows an employee to continue in his employment and at the same time receive the 104 weeks of benefits pursuant to § 97-61.5. Although § 97-61.7, and cases interpreting this provision, have allowed employees to obtain the 104 weeks of benefits under § 97-61.5, our courts have held that § 97-61.7 applies only after an employee has been ordered removed and awarded compensation under § 97-61.5. See Austin, 141 N.C. App. at 416. Thus, § 97-61.7 does not remove plaintiff's burden to prove his entitlement to benefits under § 97-61.5(b). Plaintiff's argument that Sections 97-61.5 and 97-61.7 are to be read together was rejected by the Supreme Court in Austin, which adopted the dissent of Judge Greene rather than the majority opinion of the Court of Appeals.
Section 97-61.7 provides that "[a]n employee who has been compensated" under § 97-61.5(b) as an alternative to forced change of occupation may, subject to approval of the Industrial Commission, waive further compensation and continue his employment. Plaintiff incorrectly relies on Bye v. Interstate Granite Company, 230 N.C. 334, 53 S.E.2d 274 (1949), which preexisted the current statutory provision for an order of removal, for the proposition that plaintiff may receive an order of removal and continue to maintain his employment. A careful reading of this case reveals that the Commission did not actually order plaintiff to be removed from his employment, but, advised plaintiff that he should seek new employment based on reports from his examining physician and based on plaintiff's age and long exposure and left the decision to leave his employment to plaintiff. Significantly, the Bye decision pre-dates the changes to the Act requiring the Commission to order removal, and in fact, no order of removal was entered by the Commission in that case, therefore, Bye does not support the proposition for which it is offered by plaintiff. Plaintiff also cites Roberts v. Southeastern Magnesia Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742 (1983) for the proposition that the Commission can order plaintiff to "refrain from exposing himself to the hazards of employment" and receive 104 weeks of benefits without leaving his employment. Contrary to the suggestion of plaintiff, however, the Roberts decision stands for the proposition that a plaintiff is entitled to compensation for his removal from employment exposing plaintiff to the hazards of asbestos as an incentive to force change in occupation, or provide a "safety net", without requiring plaintiff to prove an incapacity to earn wages due to his disease. 61 N.C. App. at 709. In Roberts, there was no evidence that plaintiff continued to be exposed to asbestos after his removal was ordered. The critical evidence was that plaintiff was the president of defendant-employer, that he was daily exposed to asbestos before the order of removal, regardless of the fact that defendant-employer was phasing out its use of asbestos.
Plaintiff also inappropriately relies on Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952). Honeycutt is not a § 97-61.5(b) case, and predates the current statutory provisions. In Honeycutt, plaintiff was diagnosed with asbestosis at which time his dusty trades card was revoked and the recommendation was made for plaintiff to obtain new employment. Plaintiff found new employment as a police officer where he earned greater wages. The issue was whether plaintiff had "disability" because he had no loss of wage earning capacity. The Supreme Court explained the difference between "disablement" applicable to asbestosis and silicosis cases and "disability" for all other injuries/diseases and held that "disablement" under § 97-54 is not the same as "disability" under § 97-2. The Supreme Court explained that for asbestosis/silicosis cases "disablement" means "the event of becoming actually incapacitated from performing normal labor in the last occupation in which [plaintiff was] remuneratively employed." In Honeycutt the Supreme Court did not approve benefits under §§ 97-61.5(b) or 97-61.7. There is no mention of an order of removal or 104 weeks in this case. Rather, the Supreme Court held that plaintiff "would be entitled to ordinary compensation under the general provisions of our Workmen's Compensation Act. G.S. § 97-61; Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797" (1948).
In the instant claim, plaintiff has not sought a waiver from removal from the Commission. In addition, plaintiff has not presented evidence to the Commission on the issue of whether the Commission should approve a waiver of further benefits and allow plaintiff to continue in hazardous employment. Therefore, a § 97-61.7 question is not properly before the Commission.
Moreover, the majority's citation to Honeycutt is not appropriate. Honeycutt is not a 97-61.5(b) case and predates the enactment of this provision. Thus, the Supreme Court in Honeycutt did not award § 97-61.5(b) benefits, or otherwise discuss § 97-61.5(b), an order of removal, the award of 104 weeks of benefits, the payment of benefits while continuing in current employment, or the payment of 104 weeks of benefits for the incurable nature of the disease. Rather, Honeycutt supports the proposition that an employee with asbestosis is entitled to recover compensation under the general provisions of the Act (i.e.: §§ 97-29, -30, -31) as expressed in § 97-61.
In Comstock v. Weyerhaeuser Company, I.C. No. 931412, filed on February 3, 2003, the same Commissioners composing the majority in this case, denied plaintiff's claim for § 97-61.5(b) benefits because "a retiree who is no longer employed by the asbestos-exposing industry is not entitled to an order of removal and the subsequent award because he no longer faces the possibility of exposure. See Austin v. General Tire, 354 N.C. 344, 553 S.E.2d 680 (2001)." [COL 4 in I.C. No. 931412.] The same majority has also denied the 104 weeks of benefits to retirees in I.C. File No. 002991, Davenport v. Weyerhaeuser. The circumstances are no different in this case, and thereby, the results should be the same.
§ 97-88.1 ATTORNEY'S FEES
Finally, the majority opinion finds that plaintiff's claim for attorney's fees for unfounded litigiousness pursuant to § 97-88.1 should be "held in abeyance." [Conclusion of Law No. 8.] If a ruling on this issue cannot be made at this time, then clearly there are and will be no grounds to assess attorney's fees. If it cannot be determined that the defense is unreasonable, then in fact the defense is patently reasonable as reasonableness is not determined in hindsight. Further, as noted above, this case includes numerous legal issues on which the parties, including defendant, have a right to a ruling by the Commission and subsequently by the Courts. Thus, plaintiff's claim for attorney's fees pursuant to § 97-88.1 must be denied. See Shaw v. United Parcel Service, 116 N.C. App. 598, 449 S.E.2d 50 (1994), aff'd per Curiam, 342 N.C. 189, 463 S.E.2d 78 (1995).
CONCLUSION
For the foregoing reasons, plaintiff's claim for 104 weeks of benefits pursuant to § 97-61.5(b) must be denied. Therefore, I must respectfully dissent from the majority's opinion remanding this case for reconsideration of § 97-61.5(b) benefits.
S/_______________ DIANNE C. SELLERS COMMISSIONER
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