Woodley v. Weyerhaeuser Co.

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

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

STIPULATIONS1. Plaintiff was employed by defendant Weyerhaeuser Company at its facility in Plymouth, North Carolina, from October 31, 1955, to May 31, 1991.

2. Defendant Weyerhaeuser Company was self insured during the time of plaintiff's employment with defendant.

3. Plaintiff was last injuriously exposed to asbestos during plaintiff's employment with defendant Weyerhaeuser Company, and plaintiff was exposed to asbestos for 30 days within a seven-month period as set forth in N.C. Gen. Stat. § 97-57.

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

5. Plaintiff held a number of different jobs during his 36 years of employment with Weyerhaeuser. When plaintiff first started, he worked in the power department and had to remove asbestos insulation from pipes and boilers. His other jobs at the facility included a variety of activities as a general laborer, where he was exposed to dust in various areas. Such dust was predominately from asbestos-containing insulation that surrounded pipes and boilers. Plaintiff also worked as a millwright and spent time working in the boiler room. In 1965, he began working in the area of fine paper rewinding and was exposed to asbestos dust arising from machine brake linings and clutches. Throughout his employment, plaintiff was exposed to dust from the industrial process, asbestos-insulated pipes, and asbestos-lined machine brakes and clutches.

6. Plaintiff does suffer from an occupational disease, asbestosis. He was diagnosed with asbestosis on December 10, 1997, by Dr. Dennis Darcey. Defendant agrees that a member of the North Carolina Occupational Disease Panel confirmed this diagnosis and that these medical records are stipulated into evidence for consideration by the Commission.

7. Plaintiff's income for the 52 weeks prior to his retirement on May 31, 1991, was $36,719.74, which is sufficient to yield the maximum rate allowable under the North Carolina Workers' Compensation Act for 1991, $406.00.

8. The parties are subject to the North Carolina Workers' Compensation Act, with defendant employing the requisite number of employees to be bound under the provisions thereof.

9. The parties agree that should N.C. Gen. Stat. §§ 97-60 through97-61.7 be declared unconstitutional, additional testimony may be offered by the parties on the issues of loss of wage earning capacity and/or disability.

10. Plaintiff contends he is entitled to an award of a ten percent (10%) penalty pursuant to the provisions of N.C. Gen. Stat. § 97-12. Defendant agrees that should the claim be found compensable, defendant shall pay an amount of five percent (5%) of all compensation exclusive of medical compensation.

11. The parties submitted into evidence plaintiff's medical records and reports by the following physicians: Ralph E. Whatley, M. D.; Dennis Darcey, M. D.; John Wu, M. D.; L. C. Rao, M. D.; Fred M. Dula, M. D.; and David Foreman, M. D.

12. The parties agree that the contested issues in this matter are as follows: (1) Does N.C.G.S. § 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; and (2) What benefits, monetary and/or medical, is plaintiff entitled to receive, if any?

***********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 at its Plymouth facility on October 31, 1955 to May 31, 1991.

2. Plaintiff was exposed to asbestos-containing materials on a regular basis during his 36 years of employment with defendant. Plaintiff was exposed to asbestos-containing materials on a regular basis for more than 30 working days or parts thereof within seven consecutive months between 1965 and 1991.

3. Plaintiff's medical records, which were stipulated into evidence, indicate the following:

A. The Advisory Medical Evaluation Report written by Dr. Ralph Whatley, a panel physician who independently examined plaintiff at the request of the North Carolina Industrial Commission on May 11, 1999. Dr. Whatley took an occupational history of plaintiff, who stated that as a general laborer he was exposed to dust that had arisen from insulation surrounding pipes and boilers which were predominately asbestos-containing. When plaintiff worked in the fine paper rewinding area, he was exposed to asbestos-containing dust from the machine brakes and clutches as well as areas of insulated pipes. He remained in the fine paper area from 1965 until his retirement in 1991. Plaintiff reported that he does not smoke and never smoked.

B. Dr. Whatley conducted a full physical evaluation including a blood test and pulmonary function testing. He also reviewed the chest x-ray dated July 19, 1999, along with other medical records. It was Dr. Whatley's conclusion that plaintiff meets the criteria for a diagnosis of asbestosis based on his exposure to asbestos dust, his long latency period, and interstitial changes on x-ray consistent with asbestosis. Dr. Whatley notes that because of plaintiff's exposure to asbestos, plaintiff is at some increased risk for developing lung cancer and mesothelioma. He recommended that plaintiff should receive an annual evaluation and chest radiograph by his personal physician.

C. The medical report of Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University dated December 10, 1997. Dr. Darcey took a full occupational and medical history from plaintiff. Dr. Darcey also reviewed pulmonary function studies, chest films, and other medical records, as well as performed a full physical exam.

D. It was the opinion of Dr. Darcey that plaintiff suffers from mild asbestosis. His conclusion was based on plaintiff's history of exposure to asbestos with adequate latency to develop asbestosis; an ILO chest x-ray B-read showing pleural and interstitial changes consistent with asbestosis; interstitial changes on the high resolution CT scan; and bilateral respiratory crackles heard in both lung bases.

E. Dr. Darcey, as part of his report, recommended that plaintiff undergo periodic monitoring for progression of asbestos-related disease, including pulmonary function and chest x-rays. Dr. Darcey further recommended that plaintiff avoid further exposure to asbestos dust. Finally, in addition to plaintiff's increased risk of developing asbestosis, he was and remains at an increased risk of developing lung cancer and mesothelioma as a result of his asbestos exposure, compared to non-exposed individuals.

F. A CT scan and chest x-ray report dated August 19, 1997, interpreted by Dr. Fred M. Dula of Piedmont Radiology in Salisbury, a radiologist and certified NIOSH B-reader. On the CT scan, Dr. Dula reported some definite interstitial changes in the lungs including short, thickened interlobar lines extending to the pleural surfaces and parenchymal bands that were more prominent in the bases and seen in the non-dependent portions of the lungs. On the chest x-ray, Dr. Dula reported interstitial changes in the lower halves of both lungs consisting of irregular linear opacities along with mild bilateral pleural thickening, which was more evident than on the CT scan. It was Dr. Dula's overall impression that there are interstitial and pleural changes which would be consistent with asbestosis in the appropriate clinical situation.

G. A B-read report written by Dr. L. C. Rao, a NIOSH B-reader at Pulmonary Medicine Associates who reviewed a chest x-ray dated October 22, 1999. Dr. Rao reported irregular opacities present in the lower lung zones bilaterally of category s/t with 1/1 profusion. It was Dr. Rao's conclusion that in the presence of a significant exposure to asbestos dust, these findings are consistent with the diagnosis of bilateral interstitial fibrosis due to asbestosis.

H. A B-read report written by Dr. John W. Wu, a NIOSH B-reader who reviewed the chest x-ray dated October 22, 1999. Dr. Wu reported parenchymal abnormalities consistent with pneumoconiosis in the lower, middle, and upper lung zones with 1/0 profusion.

I. A B-read report written by Dr. David R. Foreman, a NIOSH B-reader who reviewed the chest x-ray dated October 22, 1999. Dr. Rofeman reported parenchymal abnormalities consistent with pneumoconiosis in the lower lung zones with 1/0 profusion along with pleural abnormalities consistent with pneumoconiosis.

4. Plaintiff does suffer from asbestosis and asbestos-related pleural disease as a result of his many years of asbestos exposure while employed by defendant. His pulmonary impairment is permanent and is likely to progress. Plaintiff would benefit from medical monitoring, evaluation and possible treatment in the future as a result of his asbestosis. Furthermore, medical monitoring is reasonably necessary due to plaintiff's increased risk of developing lung and other asbestos-related cancer.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

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. 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.

15. 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.

16. 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 contracted the occupational diseases of asbestosis and asbestos-related pleural disease as a result of his employment with defendant. N.C. Gen. Stat. §§ 97-53(24) and 97-62.

2. Plaintiff was last injuriously exposed to the hazards of asbestos dust while employed by defendant, and for as much as 30 days or parts thereof, within seven consecutive months, which exposure proximately augmented his asbestosis. N.C. Gen. Stat. § 97-57; Clark v. ITTGrinnell Industrial Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369 (2000); Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E.2d 275 (1942); Barber v. Babcock Wilcox Construction Company,101 N.C. App. 564, 400 S.E.2d 735 (1991).

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

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

5. The North Carolina Supreme Court determined that a retiree who is no longer employed by the asbestos-exposing industry is not entitled to an order of removal and the subsequent award because he no longer faces the possibility of exposure. See Austin v. General Tire, 354 N.C. 344,553 S.E.2d 680 (2001). However, the instant case may be distinguishable from Austin in that plaintiff was likely not aware of his development of asbestosis until after he retired because defendant's medical surveillance program did not effectively monitor and track his development of asbestosis during his employment with defendant. Had defendant's program provided proper medical screening to inform plaintiff of his development of asbestosis, he might have been diagnosed with asbestosis while still in defendant's employ and, thus, subject to an order of removal and subsequent award. Plaintiff may have, to his detriment, relied upon the representations of defendant in regard to its medical monitoring of plaintiff. Thus, defendant may be equitably estopped from arguing that plaintiff is not entitled to the 104 week award pursuant to an order of removal.

The doctrine of equitable estoppel is a means of preventing a party from asserting a defense that is inconsistent with its prior conduct.Purser v. Heatherlin Properties, 137 N.C. App. 332, 337, 527 S.E.2d 689,692 (2000), cert. denied, 352 N.C. 676, 545 S.E.2d 428 (2000) (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.

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

7. Plaintiff is entitled to undergo subsequent examinations as provided by law, pursuant to the provisions of N.C. Gen. Stat. §§ 97-61.1 etseq. 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 undersigned 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 26th day of March 2003.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

For the reasons stated below, I respectfully disagree with the majority decision to remand this case to reconsider an order of removal and payment of 104 weeks of benefits under an estoppel theory.

NECESSARY ELEMENTS FOR ORDER OF REMOVAL/104 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] Although the parties have stipulated that plaintiff has asbestosis, plaintiff has not met the second condition, and indeed has presented no evidence to prove that his occupation currently exposes him "to the hazards of asbestosis." Moreover, the evidence is that plaintiff retired from his employment with defendant in 1991. 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 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; i.e.: that he is employed in an industry that actually exposes him to the hazards of asbestos. Further, § 97-61.5(b) compels removal from "hazardous exposure" to asbestos, not merely because a facility may have asbestos present, but because asbestos is present in such a form as it can be inhaled, i.e. friable. Asbestos that is non-friable, encapsulated, or in other form such that it would not be inhaled and therefore not cause or contribute to asbestosis is not, while in that form, a "hazardous" exposure. Thus, plaintiff must present evidence that there is asbestos in the facility that currently presents a hazardous exposure to him while working. 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. The parties stipulated that plaintiff last worked for defendant on May 31, 1991. The undisputed evidence is that plaintiff retired in 1991, almost 11 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. 2, "[p]laintiff was exposed to asbestos-containing materials on a regular basis for more than thirty days or parts thereof within seven consecutive months between 1965 and 1991." 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.² The majority correctly finds in Finding of Fact No. 1 and Stipulation No. 6 that plaintiff was last employed on May 31, 1991 and that he was not diagnosed with asbestosis until December 10, 1997. The parties also stipulated that plaintiff was last injuriously exposed (30 work days inside of seven consecutive months) to asbestos while employed by defendant. These findings and stipulation taken together, however, do not support the necessary element under §97-61.5(b) to establish that plaintiff at the present time is hazardously exposed in his employment with defendant. The stipulation does not define when during the twenty-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).

PLAINTIFF'S § 97-57 ARGUMENT IS MISPLACEDRather than presenting evidence of current exposure to the hazards of asbestos in her employment, plaintiff suggests that the stipulation, made pursuant to § 97-57, that plaintiff was exposed to asbestos for 30 days within a seven-month period,³ presents an irrebuttable presumption that plaintiff was exposed to asbestos in the last 30 days of his employment. Plaintiff's reliance on § 97-57 to 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 asks the Commission to remove plaintiff from employment with defendant when plaintiff is not currently employed with defendant and there is no competent evidence that employment would currently subject plaintiff, or others who actually work there, to the hazards of asbestos. An order of removal, which is a prerequisite to § 97-61.5(b) award of 104 weeks of benefits, is a legal nullity unless the plaintiff is actually working in an employment that creates a hazardous exposure to asbestos. Only an appropriate order of removal, that actually removes plaintiff from his current employment in the industry, triggers the payment of 104 weeks of benefits. See Clark v. ITT Grinnell,141 N.C. App. 417, 539 S.E.2d 369, remanded for reconsideration,354 N.C. 572, 558 S.E.2d 867 (2002); Austin, 141 N.C. App. at 415;Moore, supra (removal from industry by directive of Commission); N.C. GEN. STAT. § 97-61.5(b) (if employee is removed from industry).

The question of current exposure to asbestos as a condition precedent to the award of 104 weeks of benefits was recently addressed by the Court of Appeals in Abernathy. See Abernathy v. Sandoz Chemical, 151N.C. App. 252, 565 S.E.2d 218, review denied, 356 N.C. 432, 572 S.E.2d 421 (2002). In Abernathy, the plaintiff was represented by the same firm who represents plaintiff in this case. The Court of Appeals' opinion notes that the parties agreed that the Commission's award of 104 weeks of benefits was in error when the employee had retired and thereby was 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."⁴

Austin, 141 N.C. App. at 415, 540 S.E.2d at 835. Judge Greene's statement is consistent with the express language of the Act requiring the Commission to order removal from "any occupation that exposes him to the hazards of asbestos". If the employee is not exposed to the hazards of asbestos, there is no hazardous employment from which to order the removal and the order of removal would be a legal nullity and, hence, could not trigger an award for 104 weeks of compensation.⁵

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.⁶ 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, stipulated testimony from other proceedings, and the hearing agreement of the parties. The majority, however, would have the Commission decide this case on argument of counsel that is not supported by the record. There is no evidence before the Commission in this case to support the findings of the majority made in Findings of Fact Nos. 13, 14, and 15. These "findings" come solely from suggested argument of counsel for plaintiff.⁷ 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.

Further, 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. As late as 1999, radiologists selected by plaintiff were reading plaintiff's chest x-rays to reveal a 1/0 profusion level, which is below the minimum 1/1 threshold necessary to diagnose asbestosis under the American Thoracic Society standard. Asbestosis is generally a progressive disease that is not known to improve its appearance on x-ray over time. Therefore, there is no reason to assume that screening x-rays taken during plaintiff's employment would have protected him when films taken in 1999 would not have lead to his removal from employment. Further, there is no basis to assume that if he would have anticipated that the State dusty trades program would have protected him. 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.

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 decisions¹⁰ 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,¹¹ 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 IC. 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 The "first hearing" expressed in § 97-61.5 occurred on March 13, 2002. 2 ² The majority refers to the civil court testimony from Joseph Windlick a certified industrial hygienist who was formerly employed by Weyerhaeuser. Although his testimony includes recorded measurement of asbestos fiber exposure in several activities at the Weyerhaeuser paper plants, this testimony is confined to the time periods prior to the Weyerhaeuser abatement program that started in 1973. Mr. Windlick was asked about the changes in the air sampling from the pre-abatement to the post-abatement period, however, the court sustained an objection to this testimony and it was not received in evidence. Thus, Mr. Windlick's testimony is silent on the level of exposure, if any, to asbestos after the abatement. And, his testimony of pre-abatement exposure is not evidence of the current conditions at the Weyerhaeuser plants. 3 ³ 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."

4 ⁴ This position was also expressed by the former Chairman of the Industrial Commission, William H. Stephenson when he testified:

Q. Isn't it, sir, only when the individual is being further exposed to asbestos that he has to leave that employment and go to another?

A. That's correct.

Deposition testimony of William H. Stephenson in I.C. No. 902274, Goddard v. Weyerhaeuser, at page 49.

5 ⁵ Plaintiff also suggests that the stipulation of the parties also requires the Commission to enter an order of removal. The stipulation states: "The parties agreed further that should plaintiff be awarded compensation 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. 6 ⁶ 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.

7 ⁷ In other opinions adopting the "estoppel" argument, the majority has stated: "At the hearing before the Full Commission, counsel for plaintiff represented that plaintiff relied upon defendant's representations to him and his fellow employees that defendant's asbestos medical surveillance program would monitor his exposure to asbestos and would medically screen and monitor him for any signs of the development of asbestosis. "Since the majority has reviewed my dissenting opinions, the more recent majority opinions, such as this case, state: "Plaintiff may have relied upon defendant's representations to him and his fellow employees that defendant's asbestos medical surveillance program would monitor his exposure to asbestos and would medically screen and monitor him for any signs of development of asbestosis." Although the change in language removes the fact that the "finding" comes from argument of counsel, the findings of the majority are still based on an assumption, rather than evidence of record. 8 ⁸ In particular, the majority improperly finds in Finding of Fact No. 13: "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 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.

11 ¹¹ 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).