Alexander II v. Weyerhaeuser Co.

While plaintiff has contracted the occupational disease of asbestosis, and more than likely his colon cancer was related to occupational exposure to asbestos, I must respectfully dissent from the majority decision to remand this case to reconsider an order of removal and pay 104 weeks of benefits pursuant to N.C. GEN. STAT § 97-61.5(b) under an estoppel theory.

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 (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] 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." Moreover, the evidence is that plaintiff retired from his employment with defendant on September 31, 1991. Although plaintiff testified that he retired, at least in part, due to shortness of breath the medical records relate the shortness of breath to plaintiff's then diagnosed, unrelated obstructive lung disease. Moreover, the pulmonary testing performed on plaintiff in 1989 and 1990 was negative for asbestos-related pulmonary disease. 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 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 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 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. Although plaintiff testified as to exposure to asbestos in his employment with defendant, he did not testify that he is currently exposed to asbestos in employment with defendant, or any other employer. Moreover, the undisputed evidence is that plaintiff retired in September 1991, more than 10 years before the "hearing after first examination."¹ 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. 4, "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 1947 to 1991."² However, there is no evidence, stipulation, or reasonable inference to support a finding that plaintiff is currently, hazardously exposed to asbestos in employment with defendant. The majority correctly finds in Finding of Fact No. 1 that plaintiff was last employed on September 1, 1991, and that plaintiff was many years later diagnosed with asbestosis. 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 by defendant. The stipulation does not define when during the forty-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).

Moreover, as discussed below in the section on estoppel, the majority has completely ignored the medical records concerning plaintiff's health during the time period immediately prior to plaintiff's retirement in 1991. First, plaintiff's pulmonary function was monitored prior to his retirement. B-reads for asbestosis and other dust-related pulmonary disease read by Dr. Weaver, a certified B-reader, in 1989 and 1990 reported that plaintiff's films were completely negative. Further, pulmonary function studies reported unrelated obstructive disease,³ however, failed to find evidence of restrictive disease that would be associated with asbestos exposure. Simply, the medical monitoring performed on plaintiff before his retirement did not indicate that he had asbestosis prior to his retirement. Plaintiff was not diagnosed with asbestosis until 1999. Second, although the majority finds, and defendant has not disputed, that plaintiff's colon cancer was more likely than not related to occupational asbestos exposure, no medical doctor expressed that opinion when plaintiff began this treatment in 1991. Rather, this information first comes from an after-the-fact peer review of medical records by Dr. Frank performed in 1999. Thus, there is no medical evidence to legally support removing plaintiff from hazardous employment prior to 1999, long after plaintiff had voluntarily retired. N.C. GEN. STAT. § 97-61.5(b).

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,⁴ 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).

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 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. RockyMount Marble Granite Works, 251 N.C. 296, 111 S.E.2d 324 (1959). InFetner, 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 employment⁵ involves a hazardous exposure to asbestos. The evidence, however, is undisputed that plaintiff is notcurrently employed with defendant, or anyone else; therefore, there is no foundation to order his removal. If plaintiff is 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; N.C. GEN STAT. § 07-61.5(b).

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 notcurrently 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."

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.⁶

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 holds 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 ESTOPPELThe evidence in this case consists of several medical depositions, stipulated medical records, the hearing agreement of the parties, and the testimony of plaintiff and his wife. The majority, however, would have the Commission decide this case on argument of counsel that is not supported by the record.⁷ There is no evidence before the Commission in this case to support the findings of the majority made in Findings of Fact Nos. 26, 27, and 28. 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.

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.⁸ 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.

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.⁹ 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.

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.

Moreover, there is no evidence, available for review, to suggest that plaintiff exhibited signs of asbestosis in 1991, when he retired, or at any other times while he was employed by defendant. Rather, to the contrary, the evidence is that plaintiff was in a medical monitoring program which consisted of chest x-rays with B-reads and pulmonary function studies. Plaintiff's x-rays, performed in 1989 and 1990, were negative for evidence of any dust-related disease, including asbestosis. In addition, plaintiff's pulmonary function studies failed to reveal restrictive lung disease that would be anticipated in a person with asbestosis.¹⁰ Absent a chest x-ray with a 1/1 or greater profusion rating, the State Board of Health, would issue a dusty trades card. Thus, plaintiff's negative chest firms would not have triggered removal prior to his retirement. Although plaintiff was diagnosed with asbestosis in 1999, his medical records in 1989 and 1990 do not support this diagnosis prior to his retirement in 1991. Without medical evidence that plaintiff had diagnosable asbestosis while working for defendant, there is no basis to apply an estoppel theory. Thus, there is no basis to apply the estoppel doctrine under the circumstances of this case.

Inappropriately, the majority has chosen to decide this case based on the unsupported argument of plaintiff's counsel rather than to accurately review the evidence of record.

INSUFFICIENT ORDER OF REMOVALTo trigger the award of 104 weeks of benefits the order of removal must cause plaintiff to be removed from the industry. In Moore, the Supreme 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 order to remand this case to reconsider the entry of an order of removal ignores the statutory mandate that plaintiff is to be actually removed from his employment with defendant.¹¹ At best, this order of removal appears to 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 an order of "removal" will not, and cannot, in fact, remove plaintiff from his employment, let alone the industry, because plaintiff left employment before the directive of the Commission, an order of removal, subsequent to retirement, does 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).

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. 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 decisions¹² 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.

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,¹³ 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. SeeAustin, 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.

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.

COORDINATION OF BENEFITSThe majority has awarded § 97-31(24) benefits¹⁴ and remanded the claim to a deputy to consider whether § 97-61.5(b) benefits should be awarded. No mention is made concerning the coordination of these benefits, therefore, I feel compelled to discuss this issue.

A plaintiff is entitled to recover the greater of § 97-31(24) or § 97-61.5(b) benefits, but not both. Hicks v. Leviton Mfg. Co.,121 N.C. App. 453, 466 S.E.2d 78 (1996). Thus, should the plaintiff in this case ultimately prevail in the recovery of § 97-31(24) and § 97-61.5(b) benefits, he will be presumed to elect the greater recovery, but will not be able to recover benefits under both provisions. Id.

§ 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 "held in abeyance." [Conclusion of Law No. 9.] 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 ParcelService, 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).

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.

S/_______________ DIANNE C. SELLERS COMMISSIONER

DCS/gas

1 ¹ The "first hearing" expressed in § 97-61.5 occurred on May 28, 2002. 2 ² This finding is not supported by the record because there is no competent evidence that plaintiff was exposed to asbestos throughout his employment. Plaintiff's medical records indicate exposure while working in the Turbine room during the early years of employment with defendant. 3 ³ The majority opinion cites the pulmonary function studies and the recommendation that plaintiff avoid use of respiratory protection equipment during period of heat and exertion due to his obstructive disease. The majority, however, fails to recognize that plaintiff's obstructive impairment is not related to asbestos exposure, and thereby is irrelevant to the issues presented in this case. Obstructive disease is generally associated with cigarette smoking. 4 ⁴ 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."

5 ⁵ As explained above, and as found in the majority's Finding of Fact No. 1, plaintiff retired in January 1991. Plaintiff retired at age 63. Plaintiff was not diagnosed with asbestosis until 1999, approximately 8 years after his retirement. Thus, there is no "employment" from which to remove plaintiff at the time of the "hearing after first examination" to trigger the potential application of § 97-61.5(b). "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. 6 ⁶ 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. 7 ⁷ In prior opinions the majority's finding on this issue read: "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. "After viewing my dissent, the majority has chosen to adopt the language that "plaintiff may have relied upon" See Finding of Fact Nos. 27 and 28. In either event, the "finding" is based on the argument of counsel rather than evidence in the record. 8 ⁸ In particular, the majority improperly finds in Finding of Fact No. 26: "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." 9 ⁹ 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.

10 ¹⁰ Although plaintiff's pulmonary function tests revealed obstructive disease, this condition is not associated with asbestos exposure. Obstructive lung disease is generally associated with cigarette smoking, which plaintiff had a history. Further, plaintiff's restriction on the use of respiratory equipment was for his obstructive disease. Plaintiff was not diagnosed with asbestosis until 1999, long after his retirement. 11 ¹¹ The prerequisites for the order of removal are:

(1) diagnosis of asbestosis or silicosis; and,

(2) 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:

(3) 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.

12 ¹² 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.

13 ¹³ 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 AsbestosCo., 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. InHoneycutt, 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).

14 ¹⁴ The majority has awarded § 97-31(24) benefits for injury to plaintiff's colon, however, has failed to address § 97-31(24) benefits for injury to plaintiff's lungs. Given that plaintiff is not entitled to § 97-61.5(b) benefits there is no reason to delay the award of these benefits until after the third panel examination. Based on the medical evidence, I am inclined to award plaintiff $20,000 per lung, for an additional $40,000, based on the diagnosis of asbestosis with plural plaques and plaintiff's pulmonary impairment rating.

***********The Full Commission reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Glenn 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 Glenn, with modifications.

***********The Full Commission finds as fact and concludes as matters of law the following, which were entered by the parties 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 self insured.

3. An employee-employer relationship existed between the parties at all relevant times. Plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from September 19, 1947, to September 31, 1991.

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 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.

6. Defendant has stipulated that plaintiff does suffer from the occupational disease of asbestosis, which is causally related to asbestos exposure. Dr. Martha Carraway diagnosed him with asbestosis on October 29, 1997. Defendant further agrees that a Member of the North Carolina Occupational Disease Panel confirmed this diagnosis and that these and other diagnosing medical records were stipulated into evidence for consideration by the Commission. Further, plaintiff was diagnosed with colon cancer on July 3, 1991, by Dr. Victor Stelmack. Defendant neither agreed to stipulate that the colon cancer is causally related to plaintiff's asbestos exposure, nor stipulated to the admission of medical records related to plaintiff's colon cancer.

7. Plaintiff's income during the fifty-two (52) weeks prior to his retirement in 1991 was $54,916.00, which is sufficient to produce the maximum compensation rate for 1991, $406.00.

8. 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 stipulated that should the claim be found compensable, 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 agreed further that should plaintiff be awarded compensation, the Commission may include language removing plaintiff from further exposure pursuant to N.C. Gen. Stat. § 97-62-5(b).

10. 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.

11. On the issue of permanent impairment, plaintiff contends that he has been totally and permanently disabled by his colon cancer and asbestosis since the date of his last employment with Weyerhaeuser.

12 The parties agreed that the only contested issues for determination are:

A. What benefits, monetary and/or medical, is Plaintiff entitled to receive, if any?

B. Whether plaintiff's average weekly wage should be based on the maximum rate for the year of retirement or for the year of his diagnosis for asbestosis?

C. 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?

D. Whether his colon cancer is a compensable occupational disease?

13. The parties submitted to the Commission the following medical records and reports by the following physicians confirming the diagnosis of asbestosis:

A. An Advisory Medical Evaluation Report written by Dr. D. Allen Hayes, a panel physician who examined plaintiff at the request of the North Carolina Industrial Commission on October 28, 1999. Dr. Hayes did a full physical examination, performed blood tests, chest x-rays, electrocardiogram, pulmonary function tests, and reviewed prior medical records including CT scan reports. It was the opinion of Dr. Hayes that plaintiff has pulmonary asbestosis with associated bilateral pleural plaques. He also reports that plaintiff has a Class 3 AMA impairment and estimates his impairment to be 20-40% of the whole person.

B. Medical records from Dr. Sue Carraway of Duke University Medical Center dated October 1, 1997, through July 29, 1998. Dr. Carraway reported that plaintiff has episodic shortness of breath, PFT compatible with obstructive lung disease, and exam and chest x-ray compatible with restrictive lung disease. In light of significant asbestos exposure, Dr. Carraway ordered a CT scan to investigate for pleural calcifications and attempt to settle the issue of whether the patient does have asbestos-related lung disease. The CT scan performed on October 29, 1997, shows bilateral pleural plaques, bilateral basilar subpleural bands with a few lower lobe linear opacities consistent with fibrosis and asbestosis. A follow up CT scan performed on July 29, 1998, shows mild bibasilar fibrosis, slightly increased from prior, and small bilateral calcified pleural plaques, which are most consistent with asbestosis.

C. A medical report from Dr. Curseen, a pulmonologist at Lake Norman Center for Breathing Disorders saw plaintiff on August 31, 1999, for a complete evaluation including pulmonary functions tests. After a complete physical examination, Dr. Curseen reported that plaintiff had an extremely strong history for asbestos exposure and that the preponderance of medical evidence substantiates the diagnosis of asbestosis. His diffusion capacity was only 48% of predicted. Dr. Curseen classified plaintiff with a Class IV Level of AMA Respiratory Impairment based upon the pulmonary function tests.

D. Dr. Fred Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader, reviewed a chest x-ray dated July 23, 1999. He reports both pleural and parenchymal abnormalities consistent with pneumoconiosis, asbestosis.

E. Dr. L.C. Rao, a NIOSH B-reader at Pulmonary Medicine Associates, reviewed the chest x-ray dated July 23, 1999. He reports irregular opacities present in the lower lung zones and circumscribed chest wall pleural thickening bilaterally. It was Dr. Rao's overall conclusion that in the presence of a significant exposure history to asbestos dust, these findings are consistent with the diagnosis of bilateral interstitial fibrosis due to asbestosis and asbestos-associated pleural fibrosis.

F. Dr. Phillip H. Lucas, a radiologist and NIOSH B-reader, reviewed the chest x-ray dated July 23, 1999. He reported irregular interstitial opacities observed in both lower lung zones, the size and shape of which are classified as t/t and the profusion is 1/0. It is his overall opinion that there are bilateral fibrotic changes consistent with asbestosis in a patient who had an adequate exposure history and latency period.

G. Dr. Paul C. Venizelos, a NIOSH B-reader, reviewed the chest x-ray dated July 23, 1999. He reported parenchymal and pleural abnormalities consistent with pneumoconiosis. The interstitial opacities are the size and shape of t/t in the lower and middle lung zones with a profusion of 1/1.

H. Dr. Richard Bernstein, a NIOSH B-reader, reviewed the chest x-ray dated July 23, 1999. He reported pleural and parenchymal abnormalities consistent with pneumoconiosis. The interstitial opacities are the size and shape of s/t in the lower lung zones with a profusion of 1/1.

I. Medical records and reports from defendant's asbestos medical surveillance program including records from Dr. Robert Shaw, Dr. Robert Venable, and other members of Weyerhaeuser's personnel.

14. Subsequent to the hearing, the transcripts from the depositions of the following medical experts were submitted to the Commission by counsel for the parties:

A. Dr. Martha Sue Carraway [July 20, 2000]

B. Dr. Albert Curseen [June 23, 2000]

C. Dr. Arthur Frank [June 23, 2000]

***********Based upon all of the competent evidence of record and reasonable inferences flowing therefrom, the Full Commission makes the following:

FINDINGS OF FACT1. Plaintiff was employed by defendant, Weyerhaeuser Company, at its facility in Plymouth, North Carolina, from September 19, 1947, to September 31, 1991.

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. Plaintiff worked for defendant as a helper in the turbine room where his duties included keeping track of oil pressure and cleaning the steam pipes and turbines. While he worked in the turbine room, workers would come once a year and tear off the asbestos insulation to get to the turbines. Plaintiff also worked side-by-side with the pipe fitters who would tear off asbestos insulation to work on the pipes. Defendant did not provide plaintiff with any respiratory protection to prevent asbestos exposure. Beginning in 1965, plaintiff worked in the instrument shop on steam valves that were covered with asbestos insulation and worked in extreme heat with asbestos gaskets. Plaintiff worked in the instrument shop until he retired.

4. 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 1947 to 1991.

5. Plaintiff began having shortness of breath problems around 1988 or 1989. Plaintiff complained to defendant's company doctor, Dr. Venable, about his shortness of breath, but he was never told why he had a breathing problem. Plaintiff also complained to his supervisor at work about his shortness of breath. He would often have problems at work carrying and lifting equipment. However, plaintiff's supervisor did nothing to decrease his exertion level at work and plaintiff continued to have to climb stairs and carry heavy equipment as part of his job duties. Moreover, the company disqualified him in 1989 from respirator use during heat and exertion because of his respiratory impairment. Thereafter and until his retirement, plaintiff was exposed to asbestos dust but could not wear a respirator because of his respiratory impairment.

6. Plaintiff consulted a cardiologist regarding his shortness of breath in 1991. However, after a quadruple bypass in September of 1991, his respiratory impairment persisted. Additionally, during a routine check up with Dr. Venable for his shortness of breath, plaintiff was diagnosed with colon cancer, which required surgery. Because of the severe progression of his shortness of breath, plaintiff returned to work for only one day after he recuperated from his colon cancer surgery. On September 31, 1991, plaintiff retired early because he could no longer perform his job duties with his respiratory impairment. He was subsequently diagnosed with asbestosis by Dr. Carraway of Duke University Medical Center, Dr. Curseen of Lake Norman Center for Breathing Disorders, and Dr. Hayes, the Advisory Panel Physician. Plaintiff continues to be monitored by Dr. Carraway for his asbestosis.

7. Plaintiff was diagnosed with colon cancer on July 2, 1991, by his family physician, Dr. Venable, who referred him to Dr. Stelmack. Dr. Stelmack surgically removed approximately 16 inches of Plaintiff's colon to combat the cancer. Plaintiff continues to be monitored by Dr. Stelmack for reoccurrence of colon cancer.

8. Plaintiff has only a formal education through the 12th grade. All of his subsequent training occurred while he was in the employ of defendant in their apprenticeship programs. He worked for defendant for forty-four years and was making approximately $55,000.00 per year when he retired. Plaintiff did not actively seek employment after he retired in 1991 because of his increasingly severe shortness of breath, his age, and the lack of comparable employment in the rural area in which he lives.

9. Plaintiff can no longer do chores around the house, engage in his former hobby of refinishing furniture, or actively play with his grandchildren. Plaintiff is only able to take short trips and his wife cannot leave him alone. He has not been able to mow his own lawn for 3 years and has had to pay others to take care of it.

10. Plaintiff stopped smoking in 1975, but did not have any shortness of breath or chest tightness until 1988 or 1989.

11. Based upon plaintiff's pulmonary symptoms back in 1989 and 1990, and the dusty environment that he was working in, plaintiff should have been required to wear a respirator. Since Plaintiff was restricted from respirator use because of strenuous exercise and heat on the job, he should have been removed from further dust and chemical exposure back in 1989.

12. Further, Dr. Curseen agreed with Dr. Carraway that based upon Plaintiff's pulmonary symptoms back in 1989 and 1990, his dusty work environment and his inability to wear a respirator, he should have been taken out of his job environment as early as 1989.

13. The opinions expressed by Dr. Frank in his deposition testimony were credible and valid. Plaintiff clearly could not work without a respirator under the circumstances, thus, it would have been reasonable to discontinue his work when he was restricted from respirator use in 1989. Further, Plaintiff's colon cancer was directly related to his occupational asbestos exposure based upon Dr. Frank's knowledge of the literature and his own studies. The studies of Drs. Selikoff and Frank found that the risk of colon cancer following occupational exposure to asbestos is about three times the risk of one not so exposed. This has also been concluded by official agencies including NIOSH, OSHA, and the National Cancer Institute. Additionally, once plaintiff was diagnosed with colon cancer, he should have avoided any employment that would have resulted in further asbestos dust exposure because of his significant increased risk of developing a second asbestos-related cancer.

14. Plaintiff does suffer from asbestosis, asbestos-related pleural disease and asbestos-related colon cancer as a result of his many years of asbestos exposure while employed by defendant. His employment with defendant placed him at an increased risk of developing these occupational diseases as compared to members of the general public.

15. 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 and asbestos-related pleural disease. Further, medical monitoring is reasonably necessary due to his increased risk of developing lung and other asbestos-related cancers, particularly a reoccurrence of colon cancer.

16. Plaintiff's colon cancer is a compensable occupational disease, which resulted in the loss of part of his colon. The colon cancer is casually related to his occupational exposure to asbestos, which put him at three times the risk of developing colon cancer compared to members of the general public.

17. The colon is an important organ and plaintiff has sustained injury to his colon as a consequence of his direct exposure to asbestos during his employment with defendant.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. N.C. Gen. Stat. §§ 97-60 through 97-61.7 are constitutional.

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

CONCLUSIONS OF LAW1. Plaintiff is entitled to compensation in the amount of $20,000.00 for the permanent injury of plaintiff's colon due to his occupational diseases of colon cancer. N.C. Gen. Stat. § 97-31(24).

2. Additionally, 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) and97-62.

3. 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).

4. The provisions of N.C. Gen. Stat. § 97-60 et seq. are constitutional.

5. 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."

6. 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) (citingGodley 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 exmeru 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.

7. Plaintiff is entitled to payment of all medical expenses incurred or to be incurred as a result of his asbestosis, asbestos related pleural disease, and his asbestos-related colon cancer 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.

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

9. 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.

10. 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.

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

AWARD1. Defendants shall pay to plaintiff $20,000.00 for the permanent injury of plaintiff's colon, an important organ, due to asbestos-related colon cancer, subject to attorney's fees hereafter provided. Compensation due that has accrued shall be paid in a lump sum, subject to the attorney's fees hereinafter provided.

2. Defendant additionally shall pay interest in the amount of 8% per annum on this award from the date of the initial hearing on this claim, March 22, 2000, until paid in full. The interest shall be paid in full to the claimant and is not subject to attorneys' fees. N.C. Gen. Stat. § 97-86.2.

3. A reasonable attorney's fee of 25% of the compensation due plaintiff as was awarded in paragraph 1 above is approved for plaintiff's counsel. Defendant shall deduct 25% of the lump sum otherwise due plaintiff and shall pay such amount directly to plaintiff's counsel.

4. Defendant shall pay all medical expenses incurred or to be incurred by plaintiff as a result of her asbestosis, asbestos related pleural disease, and asbestos-related colon cancer for so long as such examinations, evaluations and treatments tend to affect a cure, give relief or lessen her disability.

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

6. 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.

7. 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.

8. 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 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 24th day of October 2002.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING IN PART AND DISSENTING IN PART:

S/_______________ DIANNE C. SELLERS COMMISSIONER