Clark v. Itt Grinnell Piping Company

I respectfully dissent from the majority decision to reverse the Deputy Commissioner's Opinion and Award.

The majority finds as fact that "[p]laintiff was diagnosed with asbestosis and was advised of this condition June 15, 1989." This finding is not supported by the evidence in the Record. Plaintiff stated in his answers to interrogatories that he was told by Dr. David Shanks in June 1989 that he had an occupational disease. According to Dr. Shanks' records, he did not begin seeing plaintiff until 17 September 1990. The closest medical evidence supporting any time of diagnosis regarding plaintiff's condition can be found in a Roentgenographic interpretation of plaintiff's x-rays, done 3 June 1989. In the section marked "Other Comments" is the following notation: "lung and chest wall changes consistent with exposure to asbestos." This is not a diagnosis of asbestosis, but rather is only indicative of the existence of the pleural plaques later corroborated by Dr. Shanks.

In his report dated 17 September 1990, Dr. Shanks stated that "[plaintiff] first knew of an abnormal chest X-ray about 1 and 1/2 years ago when he was told may represent some asbestos involvement." Following his examination of plaintiff, Dr. Shanks concluded that "Mr. Jimmie Clark has had significant occupational exposure to asbestos fiber, and at this time demonstrates on his chest X-ray findings compatible with that of asbestos-related lung disease in that he has pleural plaques and thickening." He also noted plaintiff's chronic cigarette smoking and the existence of chronic obstructive pulmonary disease with emphysema. In his deposition, Dr. Shanks said plaintiff's exposure to asbestos in the workplace would place him at risk for the development of asbestosis, but did not state that plaintiff has the condition.

In addition to Dr. Shanks, plaintiff was also examined by Drs. Clifton D. Young and Andrew J. Ghio. Neither of these physicians diagnosed plaintiff with asbestosis. Dr. Ghio, who examined plaintiff's x-rays taken in 1994, noted the existence of pleural plaques, but stated that he could not determine whether plaintiff had asbestosis. Dr. Young reviewed the reports of Drs. Shanks and Ghio and examined plaintiff himself. He would only say that asbestosis is a possibility, and recognized that while pleural plaques are consistent with asbestosis, they are not diagnostic of the disease. The Full Commission has repeatedly held that pleural plaques do not constitute asbestosis. See Gantv. Duckworth Elec. Co., Inc., (I.C. No. 134182, filed 24 June 1996; Hodges v. E.I. Dupont De Nemours Co., (I.C. No. 221748, filed 17 September 1996); Pridgen v. E.I. Dupont De Nemours Co., (I.C. No. 132426, filed 23 March 1998).

Having presented no evidence that plaintiff has asbestosis, the remaining question is whether plaintiff's pleural plaques constitute an occupational disease under N.C. Gen. Stat. § 97-52, which provides that an employee's disablement or death resulting from an occupational disease "shall be treated as the happening of an injury by accident" as defined by the Act. N.C. Gen. Stat. § 97-53 enumerates the diseases which are deemed occupational diseases within the meaning of the Act. As pleural plaques are not specifically mentioned in the statute, plaintiff must proceed under Subsection (13), which provides grounds for a claim for "[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."

The Commission has held in Hodges, that "the formation of pleural plaques does not constitute an occupational disease under N.C. Gen. Stat. § 97-53(13)." However, in Pridgen, the Full Commission awarded benefits pursuant to the statute to the plaintiff who demonstrated the existence of pleural plaques. Whether pleural plaques may or may not constitute an occupational disease has not as yet been addressed by the appellate courts. Assuming arguendo that the condition may be compensable under the statute, the following analysis is required.

First, plaintiff must satisfy the following elements:

(1) The disease is "characteristic of and peculiar to a particular trade or profession";

(2) The disease is not an ordinary disease to which the general public is equally exposed; and

(3) Exposure to a hazard in employment contributed to or was a significant causal factor, in the development of the disease.

Booker v. Medical Center, 297 N.C. 458, 472-73,256 S.E.2d 189, 198-200 (1979). Assuming without finding that in the instant case plaintiff has met his burden, having established that he has an occupational disease by fulfilling the requirements as set out in Booker, it remains for plaintiff to demonstrate by the greater weight of the evidence that a disability resulted. N.C. Gen. Stat. § 97-2(9) defines "Disability" as an "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." In order to support a conclusion of disability, evidence must be presented (1) that the claimant was incapable after his injury of earning the same wages as were earned prior to the injury in the same employment; (2) that the claimant was incapable after his injury of earning the same wages as were earned before the injury in any other employment, and (3) that the claimant's incapacity to earn wages was caused by the claimant's injury. Hilliard v. ApexCabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).

There is no evidence in the record of this case that plaintiff has suffered a disability. Plaintiff's sole medical complaint is that he has experienced some shortness of breath in the time since he left defendant's employ in 1985. It should be noted that plaintiff is a chronic cigarette smoker, having smoked for twenty years, stopped for eight, then started again. He currently continues to smoke approximately one pack per day. This could easily account for plaintiff's shortness of breath. Further, at the time of the hearing, plaintiff maintained his employment as a pipe fitter and welder. There is no evidence that he has been incapable of earning wages, or that he has sustained any form of disability as defined under the Act. Accordingly, he is not eligible for compensation for an occupational disease.

For these reasons, the undersigned contends that the majority erred in finding as fact that plaintiff has asbestosis, and in concluding that he is eligible for compensation under the Act. Therefore, I would vote to affirm the Opinion and Award of the Deputy Commissioner.

S/ _______________________ DIANNE C. SELLERS COMMISSIONER

The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before former Deputy Commissioner Willis and Deputy Commissioner W. Bain Jones, Jr., and the briefs and oral arguments before the Full Commission. The appealing party has shown good ground to reconsider the evidence in this matter. Having reconsidered the evidence of record, the Full Commission reverses the decision of Deputy Commissioner Jones, as follows.

*************The Full Commission finds as fact and concludes as a matter of law the following, which were entered into by the parties at the hearing as:

STIPULATIONS1. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

2. At all relevant times, an employment relationship existed between Plaintiff and Defendant/employer.

3. From September 9, 1970, to January 1, 1972, Defendant/employer was uninsured.

4. Liberty Mutual Insurance Company was the compensation carrier on the risk from January 1, 1972, through December 31, 1977.

5. Cigna Insurance Company was the carrier on the risk from January 1, 1978, through the plant closing in 1985.

6. Documentation has been submitted from which Plaintiff's average weekly wage might be determined.

7. Plaintiff's Social Security earnings report was stipulated into evidence.

8. Plaintiff s employment records with ITT Grinnell were stipulated into evidence.

9. Photographs of the ITT Grinnell plant were stipulated into evidence.

10. A report dated November 25, 1991, from C.D. Young, M.D. was stipulated into evidence.

11. The issue before the Industrial Commission is whether the plaintiff suffers from asbestosis or other occupational diseases for which he is eligible to receive compensation from any or all Defendants.

EVIDENTIARY RULINGSThe objections raised in the depositions in this matter are OVERRULED.

*************Based upon all the competent evidence at the hearing and by deposition, the Full Commission finds additional facts as follows:

FINDINGS OF FACT1. Plaintiff was born on July 19, 1934.

2. Plaintiff was employed by the Defendant/employer as a pipe fitter from June, 1969, until February or March, 1985. Prior to his employment with Defendant/employer worked at the Newport News shipyards in Virginia. During the time Plaintiff worked at the shipyards before going to work for Defendant/employer, he was frequently exposed to significant levels of asbestos dust.

3. As of the last date of employment with Defendant/employer, Plaintiff earned $24,899.10 in his last full year of employment, his applicable average weekly wage being $478.83, which yields a workers' compensation rate of $319.38.

4. An employment relationship existed between Plaintiff/employee and Defendant/ employer from June of 1969 through February or March 1985.

5. The Plaintiff's employment with Defendant/employer provided exposure to asbestos materials on a regular basis. These materials included asbestos welding gloves, asbestos blankets, asbestos pipe wrap, asbestos brick, asbestos mortar, asbestos dust from the railroad car from the outside furnace, and other asbestos containing materials. The plaintiff's last injurious exposure to asbestos was with Defendant/employer between the years 1974 through 1975, when the plant stopped using asbestos-containing products.

6. Plaintiff was diagnosed with asbestosis and was advised of this condition June 15, 1989.

7. This claim was filed by the plaintiff on Industrial Commission Form 18 on or about June 6, 1991. As of the date of the hearing, Plaintiff had received no compensation.

8. Plaintiff underwent his first and only Advisory Medical Committee examination by Dr. C. D. Young on November 4, 1991. It was Dr. Young's opinion that Plaintiff, more likely than not, had asbestosis.

9. The plaintiff contracted asbestosis as a result of his occupational exposure to asbestos and his last injurious exposure was while employed by Defendant/employer. Plaintiff's exposure to asbestos in his employment placed him at an increased risk of developing asbestosis than the general public not so exposed.

*************Based upon the foregoing Findings of Fact and stipulations, the Full Commission reaches the following:

CONCLUSIONS OF LAW1. Plaintiff has asbestosis as defined by N.C. Gen. Stat. § 97-62. Plaintiff's last injurious exposure to asbestos occurred while working for Defendant/employer before the plant stopped using asbestos materials. Therefore, Plaintiff is eligible for compensation pursuant to N.C. Gen. Stat. § 97-61.5.

2 In order for the uninsured Defendant/employer to incur liability in this case, Plaintiff's last injurious exposure to asbestos must have occurred during the time Defendant/employer was uninsured, which was before January 1, 1972. Plaintiff's last injurious exposure occurred after January 1, 1972. Therefore, the uninsured Defendant/employer has no liability. Barbour v. Babcockand Wilcox Construction Company, 101 N.C. App. 564,400 S.E.2d 735 (1991).

3. Defendant/carrier Cigna did not become the carrier on the risk until January 1, 1978, after all exposure to asbestos had occurred. Therefore, Defendant/carrier Cigna has no liability.Barbour v. Babcock and Wilcox Construction Company, 101 N.C. App. 564,400 S.E.2d 735 (1991).

4. The defendant/carrier Liberty Mutual was on the risk at the time of Plaintiff's last injurious exposure and is, therefore, liable for payment of compensation due Plaintiff pursuant to the Act.. N.C. Gen. Stat. § 97-57.

5. As a result of his contraction of asbestosis, Plaintiff is entitled to receive weekly compensation at the rate of $319.38 per week for a period of 104 weeks commencing as of November 4, 1991. N.C. Gen. Stat. § 97-61.5.

6. Plaintiff is entitled to receive medical compensation as a result of his contraction of asbestosis, including future medical monitoring for medication and other medical needs. N.C. Gen. Stat. § 97-59.

7. Plaintiff is entitled to receive additional examinations from the advisory medical committee as a result of his contraction of an occupational disease, asbestosis. N.C. Gen. Stat. § 97-61.3; N.C. Gen. Stat. § 97-61.4,

*************Based upon the foregoing stipulations, findings of fact and conclusions of law, the Full Commission enters the following:

AWARD1. Plaintiff's claim for benefits is allowed against Defendant/carrier Liberty Mutual Insurance Company. All other claims against the other Defendants in this case are DENIED.

2. For Plaintiff's contraction of asbestosis, Defendant/carrier Liberty Mutual, shall pay Plaintiff at the rate of $319.38 per week for a period of 104 weeks commencing as of November 4, 1991. Amounts which have accrued shall be paid to Plaintiff in lump sum, subject to an attorney fee approved in paragraph five of this Award.

3. The defendant/carrier Liberty Mutual shall pay all medical expenses incurred or to be incurred by Plaintiff as a result of his contraction of asbestosis.

4. Plaintiff shall undergo additional examinations as provided by law pursuant to the provisions of N.C. Gen. Stat. § 97-61.3 and § 97-61.4.

5. A reasonable attorney fee of twenty-five percent of the compensation due Plaintiff under paragraph one of this Award is approved for Plaintiff's counsel and shall be paid as follows: twenty-five percent of the lump sum due Plaintiff under paragraph one of this Award shall be deducted from the sum and paid directly to Plaintiff's counsel.

6. Defendant/carrier Liberty Mutual shall pay the costs.

This 21st day of July 1998.

S/ _______________________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/ _____________________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/ _____________________ DIANNE C. SELLERS COMMISSIONER