Brinn v. Weyerhaeuser Company

***********Upon review of the competent evidence of record with reference to the errors assigned, and finding no good grounds to receive further evidence or to rehear the parties or their representatives, the Full Commission upon reconsideration of the evidence modifies and affirms the Opinion and Award of the Deputy Commissioner.

***********The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing before the Deputy Commissioner and in a Pre-Trial Agreement as:

STIPULATIONS1. 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. The employee-employer relationship existed between the parties at all relevant times. Plaintiff was employed by defendant at its Plymouth facility from 8 March 1967 until 11 March 1998.

4. Plaintiff was last injuriously exposed to asbestos during his employment with defendant, Weyerhauser Company, and specifically, that plaintiff was exposed to asbestos for 30 days within a seven-month period, as is required by N.C. Gen. Stat. § 97-57.

5. Following the hearing, defendant stipulated that plaintiff does suffer from an occupational disease, asbestosis; further, that he was diagnosed with asbestosis on 9 December 1997, by Dr. Dennis Darcey. Defendant further stipulates that a Member of the North Carolina Occupational Disease Panel confirmed this diagnosis and that these medical records will be stipulated into evidence for consideration by the undersigned.

6. By separate stipulation signed by counsel for both parties on 13 August 2002, it is stipulated that plaintiff's wages were sufficient to earn the maximum compensation benefits available under the North Carolina Workers' Compensation Act in the year 2000, which was $588.00.

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 defendant agreed that should the claim be found compensable, defendant agreed by compromise to pay an amount of 5% of all compensation, exclusive of medical compensation, as an award of penalty pursuant thereto.

8. The parties agreed further that should plaintiff be awarded compensation, the undersigned may include language removing plaintiff from further exposure to N.C. Gen. Stat. § 97-62-5(b).

9. The parties further agree that should the undersigned 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 following medical records were received into evidence:

a. Dr. Dennis Darcey,

b. Dr. Fred M. Dula,

c. Dr. James Johnson,

d. Dr. Phillip Lucas,

e. Dr. Clinton D. Young,

f. Dr. James A. Merchant, and

g. Dr. Allen Hayes.

***********Based upon all the competent evidence adduced at the hearing and the reasonable inferences therefrom, the Full Commission makes the following:

FINDINGS OF FACT1. This matter came on for hearing before the Industrial Commission after plaintiff's first examination and medical reports establishing that he has asbestosis.

2. Plaintiff has contracted asbestosis and asbestosis-related pleural disease as a result of his injurious exposure to the hazards of asbestos while employed by defendant, Weyerhaeuser Company.

3. Based upon the stipulated description of plaintiff's job duties while employed by defendant and other evidence submitted, the Full Commission finds as fact that plaintiff was exposed to asbestos containing materials on a regular basis for more than 30 working days or parts thereof inside of seven consecutive months from 1967 until 11 March 1998.

4. Plaintiff actively worked for defendant, Weyerhaeuser Company, at its facility in Plymouth, North Carolina, from 8 March 1967 until 11 March 1998. Plaintiff has been disabled from work since 11 March 1998 due to a work-related injury to his back. Despite the stipulated dates of employment, plaintiff continued to be employed at defendant's facility in Plymouth through the date of the hearing before Deputy Commissioner Berger and up to at least the date of the closing of the evidentiary record.

5. Weyerhauser manufactures paper, pulp, and paper products. Plaintiff has held several different job positions during his 32 years of employment at the Plymouth facility. He worked for several years as a mechanic on the recovery boilers, which are used to cook the wood pulp. Plaintiff also worked on the large paper machines. He was exposed to asbestos dust and fibers throughout his employment.

6. Plaintiff was initially exposed to asbestos dust in the boiler room where the boilers and the pipes were wrapped in asbestos insulation and kept in place by chicken wire. He was also exposed to asbestos dust when employees or work crews would come in and work directly on the insulation covering pipes and boilers. Compressed air was used to blow asbestos dust off the pipes and boilers, creating clouds of circulating asbestos dust.

7. Plaintiff was further exposed to asbestos while working as a mechanic on the paper machines, as the big clutches on the paper machines were made of asbestos. Plaintiff would use an air hose to blow down the clutches and to clean off brake disks. He would also grind off asbestos gaskets when they stuck to pipes.

8. Plaintiff was not provided a respirator to protect against his exposure from asbestos dust in the workplace.

9. Plaintiff has never smoked cigarettes.

10. Defendant has admitted plaintiff does suffer from asbestosis, an occupational disease. This diagnosis has been confirmed through medical documentation from Dennis Darcey, M.D., Fred M. Dula, M.D., Phillip H. Lucas, M.D., Allen Hayes, M.D., James Johnson, M.D., James A. Merchant, M.D., and Clinton D. Young, M.D.,

11. Plaintiff presented to Dr. Dennis Darcey of the Division of Occupational Environmental Medicine at Duke University on 10 December 1997. Dr. Darcey took an occupational history from plaintiff. Plaintiff stated that he had worked for Weyerhauser since 1967 and was currently employed there at that time as a senior mechanic. Plaintiff gave a history in which he stated that over the course of his employment, he was exposed to asbestos dust from insulation materials and from exposure to asbestos dust while working as a millwright and mechanic. Plaintiff reported that his job duties required him to occasionally remove asbestos insulation materials, use an air hose to blow asbestos dust and other particles from equipment including pipes and boilers, and to grind asbestos gaskets from equipment. Plaintiff also reported that he was a non-smoker.

12. It was the opinion of Dr. Darcey that plaintiff's symptoms are consistent with parenchymal lung disease associated with 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, a high resolution CT scan of the chest showing mild interstitial changes and mild bilateral pleural thickening consistent with asbestos exposure, and a pulmonary function test that showed mild reduction in diffusion capacity and mild hypoxemia.

13. Dr. Darcey, as part of his medical report, recommended that plaintiff undergo periodic monitoring for progression of asbestos related disease including pulmonary function and chest x-ray. He further recommended that plaintiff avoid further exposure to asbestos dust. Dr. Darcey also noted that plaintiff has an increased risk of developing lung cancer and mesothelioma.

14. A CT scan and chest x-ray dated 25 July 1997, was interpreted by Dr. Fred M. Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader. It was Dr. Dula's opinion that there were interstitial changes seen in both lungs including short, thickened interlobar lines extending to the pleural surfaces in the non-dependent areas of the lower lobes bilaterally. In addition, there was mild diffuse-type pleural thickening in some areas, more evident on the CT scan than on plain film. Dr. Dula was of the opinion that plaintiff had interstitial changes and mild pleural thickening consistent with asbestosis in the appropriate clinical setting. In addition, Dr. Dula interpreted a repeat CT scan and chest x-ray which were performed on 1 October 1999. Dr. Dula's overall impression was that the findings were consistent with mild asbestosis which had not progressed.

15. It was the opinion of Dr. Phillip H. Lucas, a NIOSH B-reader who also evaluated plaintiff's 24 July 1997 chest film that there were bilateral interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate exposure history and latency period.

16. Dr. Allen Hayes of Raleigh Internal Medicine also reviewed plaintiff's 25 July 1997 chest film, and indicated thereon that there were parenchymal abnormalities consistent with pneumoconiosis present.

17. Dr. James Johnson of Piedmont Radiology in Salisbury, a B-reader, reviewed plaintiff's 25 July 1997 chest x-ray and concluded there were parenchymal changes present consistent with a pneumoconiosis.

18. Dr. James A. Merchant of the University of Iowa, Ph.D. and a B-reader, also reviewed plaintiff's 1 October 1999 chest x-ray and CT and concluded that there were parenchymal changes suggestive of pneumoconiosis. In addition, he noted that the findings on the CT were consistent with asbestosis and bilateral pleural plaques.

19. On 1 January 1999, plaintiff was examined by Dr. Clinton D. Young, a Member of the North Carolina Occupational Disease Panel. Plaintiff advised Dr. Young that he has never smoked. He also stated that he worked his whole career at Weyerhaeuser starting 32 years ago. During the first two years, plaintiff was in the boiler room where he believes he was exposed to asbestos dust from ducts which were covered with asbestos. The ducts would rust out and in order to repair them, plaintiff was required to tear the asbestos off. The tearing of asbestos from the ducts exposed plaintiff to clouds of heavy asbestos dust of a frequent basis. Plaintiff stated that sometimes the dust was heavy enough that he couldn't breathe. Plaintiff's job also required him to remove asbestos covered pipes from pumps. He also reported to Dr. Young that he worked for several years on the paper machines where he would change the clutch disks and use an air hose to blow off dust from what he understands was asbestos on these disks. In addition, the hoods and pipe covers to which plaintiff was regularly exposed were insulated with asbestos. Also, plaintiff changed pumps and gearboxes covered with asbestos dust.

20. Dr. Young examined plaintiff, the chest x-ray films which were taken in his own office, and the medical records which were provided by the parties. Based upon plaintiff's occupational exposure to asbestos, his exam, the interstitial changes on chest x-ray and CT scan together with restrictive abnormality on pulmonary function testing, it was Dr. Young's conclusion that plaintiff suffers from restrictive lung disease with interstitial changes consistent with pulmonary asbestosis. He noted in his medical report that plaintiff will need ongoing supervision by his physician with attention to the long-term risk of progressive lung disease and development of malignancy. He also noted that plaintiff should not work again in an environment where he could be exposed to asbestos without full, standard protective measures.

21. Plaintiff suffers from asbestos related pleural disease and asbestosis as a result of the many years of injurious exposure to the hazards of asbestos while employed by defendant. Plaintiff's pulmonary impairment is permanent and is likely to progress. Plaintiff would benefit from medical monitoring, evaluation and some treatment in the future as a result of his asbestosis and asbestos related pleural disease. Further, medical monitoring is reasonably necessary due to plaintiff's increased risk of developing lung and other asbestos related cancers.

22. Although plaintiff is currently not working for defendant due to an unrelated job-related injury, there is no evidence in the record to support a finding that plaintiff has retired from employment or that he is permanently and totally disabled from work due to his back injury. Based upon the evidence of record, the Commission is required to issue an Order of Removal for plaintiff, pursuant to N.C. Gen. Stat. § 97-61.5 to ensure that should plaintiff become able to return to his employment with defendant or some other employment, he is ordered removed from any occupation which would further expose him to the hazards of asbestos for the remainder of his employment.

23. Plaintiff's average weekly wage was sufficient to entitle plaintiff to the maximum workers' compensation rate of $588.00 during the year 2000, in which the Deputy Commissioner ordered plaintiff's removal from asbestos exposing employment.

24. The provisions of N.C. Gen. Stat. §§ 97-60 et seq. are not unconstitutional.

25. Plaintiff seeks attorney's fees from defendant in this case on the grounds that defendant defended this claim without reasonable ground. This issue should be reserved for subsequent determination at the final hearing in this matter.

***********Based upon the stipulations and findings of fact, the Full Commission makes the following:

CONCLUSIONS OF LAW1. Plaintiff contracted the occupational diseases of asbestosis and asbestos related pleural disease as a result of his employment with defendant. N.C. Gen. Stat. § 97-62.

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. ITTGrinnell 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. 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." In the instant case, the parties have stipulated that plaintiff has asbestosis; that he was last injuriously exposed to asbestos during his employment with defendant and that the exposure was for 30 days within a seven month period; and that should plaintiff be awarded compensation, an Order of Removal is appropriate to protect plaintiff from further exposure. Accordingly, the Commission hereby issues an Order of Removal. Id. The Order of Removal does not constitute an order removing plaintiff from any opportunity to return to his employment with defendant, but plaintiff is ordered removed from any occupational exposure to asbestos for the remainder of his employment should he return to work.

4. While it has been 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), in this case plaintiff has not retired and may return to defendant's employ. It has long been recognized that the purpose of the order of removal is not only to stop continuing exposure of the employee to asbestos fibers, but also to ensure that the employee who continues to work avoids any future exposure. See Roberts v.Southeastern Magnesia and Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742 (1983). It has also long been recognized that the award of 104 weeks of compensation has the additional purpose to compensate the employee for the incurable nature of the disease. Honeycutt v. Carolina AsbestosCo., 235 N.C. 471, 70 S.E.2d 426 (1952).

5. Pursuant to N.C. Gen. Stat. § 97-61.5, the weekly amount of plaintiff's 104 weeks of compensation is to be based upon his "average weekly wages before removal from the industry, but no more than the amount established annually to be effective October 1 as provided in G.S. § 97-29. . . ." The parties have stipulated that plaintiff's wages were sufficient to entitle him to the maximum compensation rate permitted under the Act for the year 2000, the year the Deputy Commissioner issued the Order of Removal. Therefore, plaintiff is entitled to 104 weeks of compensation as a result of his diagnosis of asbestosis at the weekly benefit rate of $588.00. N.C. Gen. Stat. §97-61.5; Roberts v. Southeastern Magnesia and Asbestos Co.,61 N.C. App. 706, 301 S.E.2d 742 (1983).

6. The issue of the constitutionality of N.G. Gen. Stat. §§ 97-60et seq. has been raised by defendant and ruled upon by the North Carolina Court of Appeals. In Jones v. Weyerhaeuser Co., 141 N.C. App. 482,539 S.E.2d 380 (2000), disc. review denied, 353 N.C. 525, 549 S.E.2d 858 (2001), and in Clark v. ITT Grinnell Industrial Piping, Inc.,141 N.C. App. 417, 539 S.E.2d 369 (2000), the Court ruled unanimously that the provisions of N.C. Gen. Stat. § 97-61.5 are not unconstitutional.

7. Plaintiff is entitled to have defendant pay for such medical expenses incurred or to be incurred as a result of plaintiff's asbestos related pleural disease and asbestosis as may be required to monitor, provide relief, effect a cure or lessen plaintiff's period of disability. N.C. Gen. Stat. §§ 97-25, 97-59.

8. Plaintiff is entitled to undergo subsequent examinations as provided by law, pursuant to the provisions of N.C. Gen. Stat. §§ 97-61.1et seq. and is further entitled to any additional benefits due to plaintiff which shall be determined after additional examinations and hearings.

9. By agreement of the parties, plaintiff is entitled to recover a penalty of 5% of any compensation due him exclusive of medical compensation. By further agreement of the parties, defendant shall be subjected to a late penalty pursuant to N.C. Gen. Stat. § 97-18.

10. 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.

11. This claim must be 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 indemnity compensation under the Act beyond the 104 weeks awarded herein and any other issues in controversy are hereby held in abeyance pending the outcome of further hearings.

***********ORDER OF REMOVALPlaintiff is hereby ordered to be removed from any occupation which further exposes him to the hazards of asbestos. N.C. Gen. Stat. §97-61.5(b).

***********Based on the foregoing findings of fact and conclusions of law, the Full Commission makes the following:

AWARD1. Defendant shall pay to plaintiff compensation for 104 weeks as a result of his contraction of asbestosis, and asbestos related pleural disease while employed by defendant, at a weekly rate of $588.00. Said sum shall be paid in a lump sum to plaintiff without commutation subject to an award of attorney's fee.

2. Defendant shall pay an additional weekly sum of 5% of the weekly compensation awarded in Paragraph 1 above to plaintiff which shall also be paid in a lump sum. As to any future weekly compensation or other compensation due, defendant shall increase the amount of such weekly compensation and/or lump sum compensation awarded, by 5%. As per agreement of the parties, defendant shall be subjected to a late penalty pursuant to N.C. Gen. Stat. § 97-18.

3. Defendant shall pay all medical expenses incurred or to be incurred when bills for the same have been approved, in accordance with the provisions of the Act.

4. Plaintiff shall undergo additional examinations as provided by law.

5. A reasonable attorney's fee of 25% of the compensation due plaintiff as was awarded in paragraphs 1 and 2 above is approved for plaintiff's counsel. Twenty-five percent of the lump sum due plaintiff shall be deducted from that sum and paid directly to his counsel.

6. Defendant shall pay the costs of this proceeding.

***********ORDER REMANDINGThis 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 indemnity compensation under the Act beyond the 104 weeks awarded herein and any other issues in controversy are hereby held in abeyance pending the outcome of further hearings.

This the ___ day of October, 2002.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

While plaintiff has contracted the occupational disease of asbestosis, I must respectfully dissent from the majority decision to order removal and pay 104 weeks of benefits pursuant to N.C. GEN. STAT § 97-61.5(b). Contrary to the express language of the statute, the majority finds that an order of removal and the award of 104 weeks of benefits are warranted based solely on one fact alone: that plaintiff has asbestosis. This, however, is not the law.

NECESSARY ELEMENTS FOR ORDER OF REMOVAL/104 WEEKSRemoval 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 in a position that causes harmful exposure to asbestos. See Austin v. ContinentalGeneral 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] Plaintiff has met the first condition for removal through the agreement of the parties and the evidence that he has asbestosis. Plaintiff, however, 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." Thus, plaintiff has not established that he is entitled to an order of removal. Further, only an appropriate order of removal triggers the payment of 104 weeks of benefits. See Austin, 141 N.C. App. at 415; Moore, supra.

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 examination, 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 iscurrently exposed 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 which 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 which 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. Although plaintiff testified as to past exposure to asbestos in his employment with defendant, he also testified that locations with asbestos insulation are labeled and defendant uses outside abatement crews. Further, the parties stipulated that plaintiff worked for defendant from March 8, 1967 until March 11, 1998; however, there is no evidence that he is currently employed with defendant, let alone that the employment is hazardous. The majority finds in Finding of Fact No. 3, "plaintiff was exposed to asbestos containing materials on a regular basis for more than 30 working days or parts thereof inside of seven consecutive months from 1967 until 11 March 1998.¹" However, there is no evidence, stipulation, or reasonable inference² to support the finding that plaintiff wascurrently, hazardously exposed to asbestos in employment with defendant when he last worked in March 1998. The parties stipulated that plaintiff was employed by defendant from 1967 to March 1998. 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 stipulations taken together, however, do not support the majority's finding and conclusion that plaintiff was hazardously exposed "until 11 March 1998," or more significantly, at the present time is hazardously exposed in his employment with by 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 whether plaintiff is currently exposed to the hazards of asbestos. Thus, there is no evidence to support an essential element of plaintiff's claim.

PLAINTIFF'S § 97-57 ARGUMENT IS MISPLACEDRather than presenting evidence of current exposure to the hazards of asbestos in his 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,³ 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 determinecurrent 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).

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. Section97-57, 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 inBarber 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 30 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. RockyMount 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 WORKPlaintiff has argued illogically that he is entitled to an order of removal because his current employment⁴ involves a hazardous exposure to asbestos, and incongruously, at the same time, contends that he does not have to be removed from his current employment. Plaintiff can not have it both ways. If plaintiff is actually currently hazardously exposed to asbestos, we must order his actual removal from employment.See N.C. GEN. STAT. § 97-61.5(b). If he is not currently hazardously exposed to asbestos, he is not in an employment that requires removal.Id.; see Austin, 141 N.C. App. at 145. Plaintiff is only entitled to 104 weeks of benefits if he is actually "removed from the industry" following a sufficient order of removal. See Austin, supra.

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, ___ N.C. App. ___,565 S.E.2d 218 (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 which 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, as well as those who are currently employed in positions where there is no evidence of current exposure to the hazards of asbestos (such as in the instant case), 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."

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.⁵

Further, plaintiff illogically argues that he does not need to be removed from his employment because, if he were to become subject to the hazards of asbestos, he could use respiratory equipment and avoid the exposure. If this argument is correct, there would be no need for an order of removal because employment under such circumstances would prevent hazardous exposure to asbestos.

Moreover, I disagree with the majority's interpretation of §97-61.5(b) because it ignores the express requirement which effectuates the underlying statutory purpose. An order of removal is conditioned on plaintiff currently occupying an "occupation that exposes him to the hazards of asbestos." See Abernathy, supra; Austin,141 N.C. App. at 415; Moore, 122 N.C. App. at 378; Roberts,61 N.C. App. at 710.

INSUFFICIENT ORDER OF REMOVALThe majority's order of removal ignores the statutory mandate that plaintiff prove current hazardous exposure prior to the Commission's ordering removal. Furthermore, the language of the order in effect concludes that plaintiff is not currently exposed as it allows plaintiff to remain in his employment and therefore is contrary to the intent of the statutory scheme:

"The Order of Removal does not constitute an order removing plaintiff from any opportunity to return to his employment with defendant, but plaintiff is must be ordered removed from any occupational exposure to asbestos for the remainder of his employment should he return to work." [Conclusion of Law No. 3]

"Plaintiff is hereby ordered to be removed from any occupation which further exposes him to the hazards of asbestos. N.C. Gen. Stat. § 97-61.5(b)" [Order of Removal]

Because this order of "removal" does not sufficiently, or actually, order plaintiff's removal from his employment with defendant, it does not satisfy the second condition for removal. At best, this order of removal appears to be premature because it is conditioned on "should he return to work," which raises the question of defendant's need to make payment before plaintiff "return[s] to work." Moreover, since the majority's order of "removal" is not in fact such an order, it does not trigger the award of 104 weeks of benefits. Austin, 141 N.C. App. at 415;Abernathy, supra; N.C. GEN. STAT. § 97-61.5(b).

PLAINTIFF'S § 97-61.7 ARGUMENT IS MISPLACEDPlaintiff suggests 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,⁶ 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.

Moreover, 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.

104 WEEKS NOT APPROPRIATE COMPENSATION FOR PLAINTIFFPlaintiff also suggests that in order to provide compensation within the intent of the Act, the award of 104 weeks is necessary even though he will continue in his employment. 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, or97-31. Abernathy, supra; Clark, 141 N.C. App. at 428-429; see Honeycuttv. 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:

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.

COORDINATION WITH OTHER CLAIMSIn Finding of Fact No. 4, the majority finds that plaintiff is out of work because of an unrelated work injury. The majority, however, fails to coordinate its award of the 104 weeks of benefits with benefits that plaintiff may be entitled to receive for his other injur(y)(ies). Under § 97-34, if plaintiff were otherwise entitled to benefits under § 97-61.5(b), he could not receive benefits from both claims at the same time. Section 97-61.5(b) expressly provides that payment shall be made for "a weekly compensation . . . which compensation shall continue for a period of 104 weeks." It does not provide for payment in a lump sum, and is not the payment of benefits under § 97-31; therefore, should an award of § 97-61.5(b) benefits be proper, they must be coordinated with other workers' compensation benefits. N.C. GEN. STAT. § 97-34.

§ 97-88.1 ATTORNEY'S FEESFinally, the majority opinion finds that plaintiff's claim for attorney's fees for unfounded litigiousness pursuant to § 97-88.1 "should be reserved for a subsequent determination at the final hearing" or "held in abeyance." [Finding of Fact No. 12; Conclusion of Law No. 10] 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 perCuriam, 342 N.C. 189, 463 S.E.2d 78 (1995).

CONCLUSIONFor 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 affirming the Deputy Commissioner's Opinion and Award.

S/_______________ DIANNE C. SELLERS COMMISSIONER

1 ¹ In Finding of Fact No. 4, the majority finds that plaintiff has been disabled from work since March 11, 1998 for a work-related injury to his back. The majority, thereby, concludes that plaintiff is still employed with defendant, at least up to the date of the closing of the evidentiary record. Although there does not appear to be any evidence or stipulation of the parties to support this finding, this Finding of Fact and the resulting Conclusions of Law awarding § 97-61.5(b) benefits raise the question of whether plaintiff is entitled to § 97-61.5(b) benefits when he is currently receiving workers' compensation for an unrelated back injury. Under § 97-34 plaintiff would not be entitled to receive compensation for both injuries at the same time; plaintiff is not entitled to a double recovery of compensation benefits for the same period of time. In addition, if plaintiff is not currently employed, there would be no reason to order his removal. Plaintiff cannot becurrently exposed, if he is not currently employed. Removal from non-existing employment would be a legal nullity. 2 ² The only possible reasonable inference that can be drawn from the position of the plaintiff is that plaintiff's continued employment does not expose him to the hazards of asbestos. As discussed below, in the section entitled "Removal From Hazardous Work," plaintiff argues that he should be able to return to his employment and has requested, as the majority has ordered, that the order of removal not remove plaintiff from his current employment. If plaintiff's current employment is sufficiently safe to allow him to return to work, this employment cannot be inferred to be hazardous. The work either presents a current hazardous exposure for which an order of removal and preclusion from a return to work should be entered, or it does not present a current hazardous exposure and plaintiff's claim for 97-61.5(b) benefits should be denied. 3 ³ The stipulation of the parties reads:

"Plaintiff was last injuriously exposed to asbestos during plaintiff's employment with defendant, and specifically, plaintiff was exposed to asbestos for 30 days within a seven month period, as is required by N.C. Gen. Stat. § 97-57."

4 ⁴ As explained in footnote 1, a serious question exists as to whether plaintiff is "currently employed" with defendant, and thereby whether he is qualified to receive an order of removal. The parties stipulated that plaintiff was employed until March 11, 1998. The majority finds that plaintiff is off from work because of an unrelated job injury to his back, however, there is no evidence or stipulation in this claim to support this finding. This portion of the dissent will presume that the majority's finding of fact number 4 is correct, although there does not appear to be evidence to support this finding. Therefore, this portion of the dissent is conditioned on the assumption that plaintiff is still employed with defendant and could return to work. Of course, importantly, if plaintiff is not able to return to work for defendant because of his back injury, the question of current hazardous employment, removal, and 104 weeks of benefits would be moot. "An employee who is no longer employed in a position that causes [allegedly]harmful exposure need not be `removed' from his employment."Austin, 141 N.C. App. at 415, 540 S.E.2d at 835. 5 ⁵ 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, the undersigned 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" and does not otherwise abrogate the requirements of the Commission to comply with § 97-61.5(b) of the Act. 6 ⁶ 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, and the majority opinion, also inappropriately relies onHoneycutt 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 removal 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 and did not mention an order of removal or 104 weeks, as this decision predates the statutory removal provisions. 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. WhitehallCo., 229 N.C. 360, 49 S.E.2d 797" (1948).