Barnes v. Weyerhaeuser Co.

I disagree with the majority's conclusion that plaintiff has asbestosis and that he is entitled to 104 weeks of benefits pursuant to §97-61.5(b). The prerequisites for an order of removal under §97-61.5(b) are:

Diagnosis of asbestosis or silicosis; and

Current employment that exposes plaintiff to the hazards of asbestosis or silicosis.

N.C. Gen. Stat. § 97-61.5(b); see Austin v. Continental GeneralTire, 141 N.C. App. 397, 540 S.E.2d 824 (2000) (J. Greene, dissenting),reversed and adopting dissenting opinion, 354 N.C. 344, 553 S.E.2d 680 (2001); Abernathy v. Sandoz Chemicals, 151 N.C. App. 252, 565 S.E.2d 218,review denied, 356 N.C. 432, 572 S.E.2d 421 (2002). The award of 104 weeks requires that plaintiff additionally prove a third element:

That the employee is removed from the industry at the directive of the Commission.

Moore v. Standard Mineral Company, 122 N.C. App. 375, 469 S.E.2d 594 (1996); Clark v. ITT Grinnell, 141 N.C. App. 417, 539 S.E.2d 369,remanded for reconsideration in accordance with Austin, 354 N.C. 572,558 S.E.2d 867 (2002); N.C. Gen. Stat. § 97-61.5(b). Because plaintiff has failed to establish all three requirements, § 97-61.5(b) benefits should not be awarded in this case.

PLAINTIFF DOES NOT HAVE ASBESTOSISI disagree with the majority's conclusion that plaintiff has asbestosis. "Asbestosis" is statutorily defined as "characteristic fibrotic condition of the lungs caused by the inhalation of asbestos dust." N.C. Gen. Stat. § 97-62. Moreover, asbestosis is a medical condition that is to be determined by current, medically accepted standards of diagnosis. The medically accepted standards for the diagnosis of asbestosis are contained in The Diagnosis of NonmalignantDiseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). The North Carolina Workers' Compensation Act places the burden on the plaintiff to establish that his claim is compensable by a preponderance of the competent evidence. In a similar fashion the medical standards for a differential diagnosis require that the physician have all available medical evidence necessary to make the diagnosis and that the doctor consider and be able to preclude other potential causes for the disease or condition. See Westberry v. Gislaved Gummi, 178 F.3d 257 (4th Cir. 1999).

The American Thoracic Society has determined that the diagnosis of "asbestosis" is a judgment based on a careful consideration of all relevant clinical findings. The Diagnosis of Nonmalignant DiseasesRelated to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). According to the American Thoracic Society, the diagnosis of asbestosis requires:

A reliable history of exposure, and

An appropriate time interval between exposure and detection, with¹

Chest roentgenographic evidence of type "s," "t," "u," small irregular opacifications of a profusion of 1/1 or greater,

A restrictive pattern of lung impairment with a forced vital capacity below lower limit of normal,

A diffusing capacity below the lower limit of normal, and/or

Bilateral late or pan inspiratory crackles at the posterior lung bases not cleared by cough.

The American Thoracic Society acknowledged that interstitial fibrosis might be present without any of the other criteria (items 3 through 6, above); however, the ATS stated that a clinical diagnosis could not be made without the other criteria. Id.

The evidence cited by the majority does not support the conclusion that plaintiff has asbestosis. For example, the majority cites physician conclusions that plaintiff has conditions that are "consistent with" asbestosis.² The majority has failed to set forth facts that are in evidence to establish a diagnosis based on the medically accepted standard for diagnosis adopted by the American Thoracic Society. SeeHolley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003) (expert speculation that condition "could have or might" have been caused, not sufficient to comply with "reasonable degree of medical certainty" standard for admissibility of opinion); Young v. Hickory Business Furniture,353 N.C. 227, 538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); See also Daubert v. Merrell Dow Pharmaceuticals, Inc.,509 U.S. 579, 113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible). A radiographic finding "consistent with asbestosis" would give reason to rule out this condition, however, it is not relevant evidence³ that establishes that plaintiff more likely than not has asbestosis. See Rutledge v.Tultex Corp., 308 N.C. 85, 301 S.E.2d 359 (1983) (prima facie case requires evidence that it is reasonably probable that a particular cause will cause a particular effect); Swink v. Cone Mills, 65 N.C. App. 397,309 S.E.2d 271 (1983) (mere possibility does not satisfy requisite standard).

Further, the majority has not properly evaluated and weighed the medical evidence. First, the majority appears to cite the opinion of Dr. Curseen as if he was the Advisory Panel Physician, when he was not.⁴ The Advisory Panel Examination was performed at the request of the Industrial Commission by Ralph E. Whatley, III. M.D. Contrary to the suggestion of the majority in Finding of Fact No. 11, Dr. Whatley did not find that plaintiff has asbestosis. In particular, Dr. Whatley testified that the B-read for plaintiff performed as part of his examination was read by Dr. Weaver, a certified B-reader, as completely normal and that Dr. Whatley, upon personal review of the film, agreed with this interpretation. Further, Dr. Whatley reviewed the films of plaintiff's CT Scan performed in December 1999 and agreed with Dr. Hayes that this examination was normal without evidence of asbestosis. In addition, Dr. Whatley performed pulmonary function studies that failed to exhibit restrictive disease associated with asbestosis and upon physical examination plaintiff failed to exhibit rales or crackles and did not have clubbing. Despite the presentation of "consistent with asbestosis" evidence from physicians hired by plaintiff, Dr. Whatley was not able to testify that plaintiff has asbestosis.

The issue before the Commission is whether plaintiff has "asbestosis," not merely whether there is evidence that he was exposed to asbestos or has other asbestos-related disease or condition, and not merely whether he has some medical findings that are "consistent with" asbestosis. The Commission has the duty to consider all of the competent evidence, weigh the competent evidence, and explain why greater weight is given to conflicting evidence. See Lineback v. Wake County Board ofCommissioners, 126 N.C. App. 678, 486 S.E.2d 252 (1997); Harrell v.Stevens Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835, disc.review denied, 300 N.C. 196, 269 S.E.2d 623 (1980); Jenkins v. EascoAluminum Corp., 142 N.C. App. 71, 541 S.E.2d 510 (2001). The majority herein, however, has provided no reason for discounting the opinion of Dr. Hayes and Dr. Whatley, the Commission selected examining doctor. The intended role of the panel examination physician is to provide the Commission with an unbiased medical examination. Sadly, the majority has improperly chosen to misconstrue and discount Dr. Whatley's findings without weighing his testimony against all of the other medical evidence. Weaver v. American National Can Corp., 123 N.C. App. 507, 510,473 S.E.2d 10, 12 (1996); Harrell v. Stevens Co., 45 N.C. App. 197,205, 262 S.E.2d 830, 835, disc. review denied, 300 N.C. 196, 269 S.E.2d 623 (1980)); Butler v. Dupont, COA01-550 (2002); Moore v. City of Lexington, COA02-223 (2003).

Further, in answering the question before us, i.e., whether plaintiff has asbestosis, it is necessary to look beyond the conclusions of the "experts" and determine whether their opinions are supported by competent and medically accepted evidence. See Smith v. Beasley Enterprises,560 S.E.2d 885 (2002) (Commission should review witness' testimony to determine that it is competent). Therefore, although the "experts" relied upon by the majority state that plaintiff has pathology "consistent with" asbestosis, the factual bases for their conclusions do not comply with the minimum required medical standards adopted by ATS for the "diagnosis of" asbestosis. The relevant issue is diagnosis, not possibility. The physician's conclusions that are not supported by the relevant criteria under the medically accepted standard are not competent evidence. SeeHolley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003) ("could or might" evidence not sufficient, standard is reasonable degree of medical certainty); Young v. Hickory Business Furniture, 353 N.C. 227,538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); Seealso Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible).

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] In addition to failing to establish a valid diagnosis of asbestosis, plaintiff also has not met the second condition, and indeed has presented no evidence to prove that his occupation currently exposes him "to the hazards of asbestosis." Moreover, the evidence is that plaintiff retired from his employment with defendant in 1995. Plaintiff retired at age 62. Plaintiff did not testify that he retired, or otherwise left work, because of breathing problems. 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 hiscurrent 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 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; i.e.: that he is employed in an industry that actually exposes him to the hazards of asbestos. Further, § 97-61.5(b) compels removal from "hazardous exposure" to asbestos, not merely because a facility may have asbestos present, but because asbestos is present in such a form as it can be inhaled, i.e. friable. Asbestos that is non-friable, encapsulated, or in other form such that it would not be inhaled and therefore not cause or contribute to asbestosis is not, while in that form, a "hazardous" exposure. Thus, plaintiff must present evidence that there is asbestos in the facility that currently presents a hazardous exposure to her while working. SeeAustin, 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. Plaintiff did not testify in this action. Moreover, the undisputed evidence is that plaintiff retired in 1995, more than 6 years before the "hearing after first examination."⁵ Thus, there is no evidence that plaintiff iscurrently employed with defendant, let alone that the employment iscurrently hazardous. The majority finds in Finding of Fact No. 3, "[p]laintiff 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 12 April 1962 to 30 November 1995." However, there is no evidence, stipulation, or reasonable inference to support the finding that plaintiff is currently, hazardously exposed to asbestos in employment with defendant. The majority correctly finds in Finding of Fact No. 1 that plaintiff was last employed on 30 November 1995 and that he was not diagnosed⁶ with asbestos until 29 May 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. This finding and stipulation taken together, however, do not support the necessary element under § 97-61.5(b) to establish that plaintiff at the present time is hazardously exposed in his employment with defendant. The stipulation does not define when during the forty-some years of employment plaintiff was last exposed to the hazards of asbestos, and more significantly, does not state that plaintiff iscurrently 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).

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,⁷ 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 her disease. Section97-57, in and of itself, does not remove plaintiff's burden to prove a necessary element of her § 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 asks the Commission to remove plaintiff from employment with defendant when plaintiff is not currently employed with defendant and there is no competent evidence that employment would currently subject plaintiff, or others who actually work there, to the hazards of asbestos. An order of removal, which is a prerequisite to § 97-61.5(b) award of 104 weeks of benefits, is a legal nullity unless the plaintiff is actually working in an employment that creates a hazardous exposure to asbestos. Only an appropriate order of removal, that actually removes plaintiff from his current employment in the industry, triggers the payment of 104 weeks of benefits. See Clark v. ITT Grinnell,141 N.C. App. 417, 539 S.E.2d 369, remanded for reconsideration,354 N.C. 572, 558 S.E.2d 867 (2002); Austin, 141 N.C. App. at 415;Moore, supra (removal from industry by directive of Commission); N.C. Gen. Stat. § 97-61.5(b) (if employee is removed from industry).

The question of current exposure to asbestos as a condition precedent to the award of 104 weeks of benefits was recently addressed by the Court of Appeals in Abernathy. See Abernathy v. Sandoz Chemical,151 N.C. App. 252, 565 S.E.2d 218, review denied, 356 N.C. 432,572 S.E.2d 421 (2002). In Abernathy, the plaintiff was represented by the same firm who represents plaintiff in this case. The Court of Appeals' opinion notes that the parties agreed that the Commission's award of 104 weeks of benefits was in error when the employee had retired and thereby was not currently engaged in employment that exposed him to the hazards of asbestos. Despite this concession before the Court of Appeals, plaintiff's counsel has not abandoned this argument before the Industrial Commission in this case, and insists that employees who are retired (such as the instant case), as well as those who are currently employed in positions where there is no evidence of current exposure to the hazards of asbestos, are entitled to removal and the 104 weeks of benefits. Further, plaintiff argues before the Commission that Austin does not require plaintiff to prove current exposure to the hazards of asbestos; however, Judge Greene's dissenting opinion, adopted by the Supreme Court, clearly states:

"An employee who is no longer employed in a position that causes harmful exposure need not be `removed' from his employment."

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.⁸

To trigger the award of 104 weeks of benefits the order of removal must cause plaintiff to be removed from the industry. In Moore, the court stated:

"the language regarding `removal from the industry' has specific application only to occasions when identified victims of occupational disease are thereafter `removed' from a hazardous industry by directive of the Commission."

Clark, 539 S.E.2d at 376, citing, Moore, 469 S.E.2d at 596. The majority's remand to consider an order of removal ignores the statutory mandate that plaintiff is to be actually removed from his employment with defendant.⁹ At best, an order of removal would be a legal nullity because there is no evidence that plaintiff is employed at all, let alone in an occupation that further exposes him to the hazards of asbestos. Moreover, since the order of "removal" cannot, and will not, in fact, remove plaintiff from his employment, let alone the industry, as plaintiff left employment before any directive of the Commission, a subsequent order of removal will not trigger the award of 104 weeks of benefits. Moore, 469 S.E.2d at 596; Austin, 141 N.C. App. at 415; Abernathy, supra; N.C. Gen. Stat. § 97-61.5(b).

The statutory mandate is for the Commission to determine "removal" and the award of 104 weeks of benefits at the "first hearing" after the panel examination. N.C. Gen. Stat. § 97-61.5. If plaintiff, as in this case, is not employed in a position that causes harmful exposure at the time the Full Commission hold the "hearing after first [panel] examination" the removal and benefit provisions of § 97-61.5(b) are not applicable. See Abernathy, 565 S.E.2d at 257; Austin,540 S.E.2d at 835-36; N.C. GEN. STAT. § 97-61.5. The benefits are for removal from "hazardous industry by a directive of the Commission."Clark, 539 S.E.2d at 376, citing, Moore, 469 S.E.2d at 596.

NO EVIDENCE TO SUPPORT EQUITABLE ESTOPPELThe evidence in this case consists of several medical depositions, stipulated medical records, and the hearing agreement of the parties. The majority, however, would have the Commission decide this case on argument of counsel that is not supported by the record.¹⁰ There is no evidence before the Commission in this case to support the findings of the majority made in Findings of Fact Nos. 13, 14, and 15. 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.

Moreover, there is no evidence, available for review, to suggest that plaintiff exhibited signs of asbestosis in 1995, when he retired, or at any other times while he was employed by defendant. Without medical evidence that plaintiff had diagnosable asbestosis while working¹¹ for defendant, there is no basis to apply an estoppel theory. Further, there is no evidence that plaintiff was in the medical monitoring program, therefore, there is no basis to assume¹² that he would have anticipated that this program would have protected him. Thus, there is no basis to apply the estoppel doctrine under the circumstances of this case.

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 decisions¹³ 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,¹⁴ 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.

§ 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. 8.] If a ruling on this issue cannot be made at this time, then clearly there are and will be no grounds to assess attorney's fees. If it cannot be determined that the defense is unreasonable, then in fact the defense is patently reasonable as reasonableness is not determined in hindsight. Further, as noted above, this case includes numerous legal issues on which the parties, including defendant, have a right to a ruling by the Commission and subsequently by the Courts. Thus, plaintiff's claim for attorney's fees pursuant to § 97-88.1 must be denied. See Shaw v. United 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 remanding this case for reconsideration of § 97-61.5(b) benefits.

S/_______________ DIANNE C. SELLERS COMMISSIONER

DCS/gas

1 ¹ Although Dr. Anderson testified, at the suggestion of plaintiff's counsel, that the first two elements (exposure and latency) are sufficient to diagnose asbestosis, this statement is not consistent with the American Thoracic Society standard. The American Thoracic Society expressed that "[I]t is possible that interstitial fibrosis may be present even though none of these criteria [referring to items 3-6, above] are satisfied, but in our opinion, in these circumstances the clinical diagnosis cannot be made." Thus, a proper diagnosis, absent pathologic examination, requires proof of the first two criteria and at least 1 of the remaining criteria. The Diagnosis of Nonmalignant Diseases Related toAsbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). 2 ² For example, the majority finds that plaintiff has asbestosis based on the reports of Dr. Johnson and Dr. Lucas, when their medical findings do not meet the minimum requirements for the diagnosis under the American Thoracic Society standard that has been adopted by the American Lung Association and the American Medical Association. See The Diagnosis ofNonmalignant Diseases Related to Asbestos, 134 American Review ofRespiratory Disease 363 (Adopted by American Lung Association, March 1986). In particular, Dr. Johnson's CT report states: "I see no pleural plaque or calcification to indicate CT evidence of asbestos exposure." Similarly, Dr. Lucas reported a profusion rating of 1/0 on a B-Read less than the 1/1 requirement of the American Thoracic Society criteria. Although Dr. Lucas reported that the 1/0 reading was "consistent with asbestosis" it is not sufficient to support a medical diagnosis of asbestosis. Id. "Consistent with" and "diagnostic of" asbestosis are two different things. Deposition of Dr. Hayes, November 27, 2000, p. 54. Further, pulmonary function studies revealed mild obstructive disease, which is not related to asbestos, without evidence of restrictive disease necessary to establish a medical diagnosis of asbestosis. Id. 3 ³ Under Rule 401 of the North Carolina Rules of Evidence, "relevant evidence" is defined as evidence that tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In other words, relevant evidence tends to establish that a contested fact is more, or less, likely. 4 ⁴ Contrary to the majority opinion Finding of Fact No. 10, Dr. Curseen is an expert hired by the plaintiff; he did not perform the independent medical examination requested by the Commission. Moreover, Dr. Curseen is not Board Certified as a specialist in the field of pulmonary medicine. 5 ⁵ The "first hearing" expressed in § 97-61.5 occurred on 30 May 2002, when this case was heard by the Full Commission. 6 ⁶ As discussed, above, the diagnosis does not meet the minimum requirements of the medically accepted American Thoracic Society standard, and thereby, is not a valid diagnosis of asbestosis. 7 ⁷ The stipulation of the parties reads:

"It is stipulated that the Plaintiff-Employee was last injuriously exposed to asbestos during Plaintiff's employment with Defendant-Employer Weyerhaeuser Company, and specifically, that the Plaintiff-Employee was exposed to asbestos for thirty (30) days within a seven month period, as is required by N.C. Gen. Stat. § 97-57."

8 ⁸ 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. 9 ⁹ The prerequisites for the order of removal are:

diagnosis of asbestosis or silicosis; and,

current employment that exposes plaintiff to the hazards of asbestosis or silicosis.

N.C. GEN. STAT. § 97-61.5(b). The award of 104 weeks of benefits requires that plaintiff additionally prove a third element:

that the employee is removed from the industry at the directive of the Commission.

Id.; Moore, 469 S.E.2d at 596; Clark, 539 S.E.2d at 376.

10 ¹⁰ In particular Finding of Fact No. 14 reads: "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." Ironically, directly contrary to this representation, there is no evidence that plaintiff was in a medical monitoring program; therefore, there is no basis to conclude that plaintiff could have relied on the program to protect him. 11 ¹¹ Note that Dr. Whatley, the panel doctor, doesn't find that the medical evidence supports that plaintiff has asbestosis today, let alone back in 1995. 12 ¹² The Commission should be making decisions based on evidence not assumptions suggested by counsel. 13 ¹³ 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.

14 ¹⁴ 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).

***********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 reverses 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, and the parties were subject to and bound by the provisions of the North Carolina Worker's Compensation Act at all relevant times.

2. Defendant was a duly qualified self-insured.

3. An employee-employer relationship existed between the parties at all relevant times. Plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from 12 April 1962 to 30 November 1995.

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

5. Defendant manufactures paper and paper products such as paper for crafts, paper bags, boxes and pulp for baby diapers. The approximate size of defendant's plant in Plymouth, North Carolina, is 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 1960's, and the vast majority of the insulation used in the original construction of the buildings was asbestos containing. There are steam-producing boilers used at the facility. In addition, there are hundreds of miles of steam pipes that were covered with asbestos insulation. The heat coming off the steam pipes is used, among other things, to dry the wet pulp/paper.

6. Plaintiff worked for defendant from 1962 until he retired in 1995. During the course of his employment, he worked in the power department from 1963 to 1965, in the storeroom from 1965 to 1977, and as a raw material coordinator from 1977 to 1995. In the power department, plaintiff was exposed to asbestos dust from the repairs being done on the pipes and asbestos insulation in his area. During clean ups, air hoses were used to blow the dust off the floor which would create dusty clouds. While employed in the storeroom, plaintiff directly handled asbestos sheet packing and cut gaskets that were made of asbestos. While working as a raw materials coordinator, plaintiff went through many areas of the plant and walked through areas where asbestos insulation was removed from pipes during repairs. Plaintiff was not provided with any respiratory protection.

7. Plaintiff's income 52 weeks prior to his retirement in 1995 was $53,652.20, which is sufficient to justify the maximum compensation rate for that year of $478.00 per week.

8. Plaintiff contends that he is entitled to an award of 10% penalty pursuant to the provisions of N. G. 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.

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

10. The parties also stipulated 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.

11. On the issue of additional monetary benefits, plaintiff is entitled to undergo the additional panel examinations as is by law required. Upon completion of the additional examinations, should the parties be unable to agree on what additional compensation, if any is due, the parties may request a hearing before the Commission on this matter.

12. The parties submitted for consideration by the undersigned the medical records and reports of plaintiff by the following physicians:

1. Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University.

2. Dr. Fred Dula of Piedmont Radiology.

3. Dr. James Johnson of Piedmont Radiology.

4. Dr. Phillip Lucas.

5. Dr. John W. Wu.

6. Dr. Albert Curseen.

7. Dr. Ralph E. Whatley.

Subsequent to the hearing before the Deputy Commissioner, the transcripts from the depositions of the following medical experts were submitted for review:

1. Dr. Fred Dula [March 6, 2000 and July 20, 2000]

2. Dr. Albert Curseen [June 23, 2000 and July 28, 2000]

3. Dr. John Wu [August 15, 2000]

4. Dr. Phillip Lucas [August 22, 2000]

5. Dr. James Johnson [January 24, 2000 and August 24, 2000]

6. Dr. Ralph Whatley [August 24, 2000]

7. Dr. Allen Hayes [February 17, 2000 and November 27, 2000]

***********Based upon all of the competent evidence of record, the Full Commission makes the following:

FINDINGS OF FACT1. This matter came on for hearing before the Commission after plaintiff's first examination and medical reports establishing that he has asbestosis. Plaintiff retired from employment with defendant on 30 November 1995, prior to the date of his diagnosis of asbestosis on 29 May 1998 by Dr. Dennis Darcey.

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 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 12 April 1962 to 30 November 1995.

4. Plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from 12 April 1962 to 30 November 1995.

5. Dr. Dennis Darcey examined plaintiff on 29 May 1998. He reviewed the 4 September 1997 chest x-ray which had been interpreted by Dr. Fred Dula and noted "parenchymal abnormalities . . . including irregular opacities, shape and size t/t in the middle and lower lung zones bilaterally with a 1/2 profusion." Dr. Darcey also examined a chest CT taken on 4 September 1997 which showed "mild diffuse type pleural thickening and interstitial changes consistent with mild asbestosis." Dr. Darcey concluded that plaintiff "appears to have some exposure to asbestos in the past although the history does not suggest high level of exposure. However, there has been enough latency to develop asbestosis since his first exposures extend back to 1963. The pulmonary function studies reveal changes consistent with chronic obstructive lung disease secondary to his cigarette smoking. . . . the ILO chest x-ray B-read and high resolution CT evaluation do show pleural thickening bilaterally consistent with asbestos exposure and nonspecific interstitial changes consistent with smoking and asbestosis with a profusion on the ILO B-read of 1/2."

6. On 4 September 1997, Dr. Fred Dula examined the films taken on that date and found that the CT scan showed "bilateral diffuse-type pleural thickening, fairly mild. There are interstitial changes in both lungs, including short thickened interlobar lines extending to the pleural surfaces along the non-dependent portions of both lung bases." Dr. Dula concluded that the CT scan demonstrated "interstitial and mild pleural changes . . . consistent with mild asbestosis in the appropriate clinical situation." Dr. Dula reviewed the chest x-rays from 4 September 1997 and found "interstitial changes in the lower halves of both lungs, consisting of irregular linear opacities. There is mild bilateral pleural thickening." He concluded that plaintiff has "interstitial and pleural changes which would be consistent with asbestosis in the appropriate clinical situation."

7. Dr. James Johnson examined a high resolution noncontrast chest CT taken of plaintiff on 20 December 1999 and found "mild interstitial changes. Parenchymal scarring in the right middle lobe. I see no pleural plaque or calcification to indicate CT evidence of asbestos exposure."

8. Dr. Phillip Lucas examined the chest radiographs dated 20 December 1999 and noted that "irregular interstitial opacities are observed in both lower lung zones, the size and shape of which are classified as t/t and the profusion is 1/0. He opined that the films showed "bilateral interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate exposure history and latent period."

9. Dr. John W. Wu examined the 1997 chest CT and found "mild scarring at both bases is nonspecific but may be suggestive of very early changes related to asbestosis."

10. On 31 August 1999, Dr. Albert Curseen, the Advisory Medical Panel Physician, examined plaintiff, including a pulmonary function analysis. Dr. Curseen concluded that "the preponderance of medical evidence substantiates the diagnosis of asbestosis," and he classified plaintiff as a "Class II Level of AMA Respiratory Impairment."

11. Dr. Ralph E. Whatley examined plaintiff on 24 June 1999 and "possible asbestos exposure but no clear evidence of pulmonary abnormalities on chest radiograph that can be attributed to asbestosis."

12. Plaintiff suffers from asbestos related pleural disease and asbestosis as a result of the many years of 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 his increased risk of developing lung and other asbestos related cancers.

13. 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.

14. At 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. 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.

15. Plaintiff asserts that he was 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.

16. Plaintiff's average weekly wage for the year in which he retired was sufficient to entitle plaintiff to a workers' compensation rate of $478.00, the maximum compensation rate under the North Carolina Workers' Compensation Act for 1995, the year in which plaintiff retired and was therefore last injuriously exposed.

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

18. 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 foregoing stipulations and findings of fact, the Full Commission hereby makes the following:

CONCLUSIONS OF LAW1. Plaintiff was last injuriously exposed to the hazards of asbestos dust while employed by defendant, for as much as 30 working days or parts thereof, within seven consecutive months, which exposure proximately augmented his asbestosis. N.C. Gen. Stat. § 97-57.

2. Plaintiff contracted the occupational diseases of asbestosis and asbestos related pleural disease while employed by defendant. N.C. Gen. Stat. §§ 97-53(24); 97-62.

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

4. N.C. Gen. Stat. § 97-61.5 provides in pertinent part that following a first hearing determination by the Industrial Commission that a claimant has asbestosis, based upon either medical evidence or by agreement of the parties, the Commission "shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis . . ." and that upon removal the employee shall be entitled to "weekly compensation equal to sixty-six and two-thirds percent of his average weekly wages . . . which compensation shall continue for a period of 104 weeks."

5. The North Carolina Supreme Court determined that a retiree who is no longer employed by the asbestos-exposing industry is not entitled to an order of removal and the subsequent award because he no longer faces the possibility of exposure. See Austin v. General Tire, 354 N.C. 344,553 S.E.2d 680 (2001). However, the instant case may be distinguishable from Austin in that plaintiff has asserted that he was 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 ex meru moto.

In Belfield v. Weyerhaeuser Co., 77 N.C. App. 332,335 S.E.2d 44 (1985), the North Carolina Court of Appeals held that equitable estoppel was appropriate to prevent an employer from raising a time limitation when the employer misrepresented to the employee that his rights under the Workers' Compensation Act were being exercised on his behalf by the employer. See Id. at 337, 47. The court stated:

The commonest type of case is that in which a claimant, typically not highly educated, contends that he was lulled into a sense of security by statements of employer or carrier representatives that `he will be taken care of' or that his claim has been filed for him or that a claim will not be necessary because he would be paid compensation benefits in any event. When such facts are established by the evidence, the lateness of the claim has ordinarily been excused.

Id. (quoting 3 A. Larson, The Law of Workmen's Compensation, Section 78.45 at 15-302 through 15-305 (1983)). In the case before the Commission, defendant similarly seeks to argue that the 104 week award pursuant to an order of removal is not timely because plaintiff was not diagnosed until after he retired. However, this Commission will not permit defendant to use a time limitation defense if there is evidence suggesting that defendant's own medical surveillance program failed to detect plaintiff's development of asbestosis while he was still in defendant's employ, or failed to disclose to plaintiff that he had developed asbestosis when defendant had knowledge thereof. Such acts may inequitably prevent plaintiff from receiving an order of removal and subsequent award that he otherwise deserved. For these reasons, defendant may be equitably estopped from arguing as to the timeliness of plaintiff's order or removal and subsequent award. Evidence as to the elements of estoppel is required before the Commission can make a determination on the matter. Therefore, this issue must be held in abeyance pending the presentation of such evidence.

6. Plaintiff is entitled to payment of all medical expenses incurred or to be incurred as a result of his asbestosis and asbestos related pleural disease for so long as such examinations, evaluations and treatments tend to affect a cure, give relief or lessen his disability. N.C. Gen. Stat. §§ 97-25; 97-59.

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

8. Plaintiff's claim for attorney's fees from defendant on the ground that defendant unreasonably defended this claim pursuant to N.C. Gen. Stat. § 97-88.1 is hereby held in abeyance until the final award is issued in this claim.

9. This claim must be remanded to a deputy commissioner for further hearing on the issue of estoppel, and for further hearing (if necessary) following subsequent examinations as required under N.C. Gen. Stat. § 97-61 et seq. Plaintiff's eligibility for further compensation in addition to medical and any other issues in controversy are hereby held in abeyance pending the outcome of further hearings.

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

AWARD1. Defendant shall pay all medical expenses incurred or to be incurred by plaintiff as a result of her asbestosis and asbestos related pleural disease for so long as such examinations, evaluations and treatments tend to affect a cure, give relief or lessen her disability.

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

3. The Commission hereby retains jurisdiction in this matter to address the issue of permanent impairment, as plaintiff has not undergone the additional panel examination as required by law for such determination. Upon completion of such examinations, should the parties be unable to agree on what additional compensation, if any, is due, the parties may request a hearing before this Commission on this matter.

4. The Commission additionally retains jurisdiction in this matter to address the issue of equitable estoppel, as raised by plaintiff, as a means of awarding to plaintiff the 104 week award pursuant to N.C. Gen. Stat. § 97-61.5.

5. Defendant shall pay the costs of this proceeding.

***********ORDER 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 the ___ day of February, 2003.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER