Barber v. Weyerhaeuser Co.

For the reasons stated below, I respectfully disagree with the majority decision.

NECESSARY ELEMENTS FOR ORDER OF REMOVAL/104 WEEKSRemoval from employment under § 97-61.5 requires a finding of at least two conditions: (1) that the plaintiff has a compensable claim for asbestosis; and (2) that plaintiff is currently employed (at the time of the "hearing after first [panel] examination") in a position that causes harmful exposure to asbestos. See Austin v. Continental General Tire,141 N.C. App. 397, 415, 540 S.E.2d 824, 835 (2000) (J. Greene, dissenting), reversed and adopting dissenting opinion, 354 N.C. 334,553 S.E.2d 680 (2001); Moore v. Standard Mineral Company,122 N.C. App. 375, 469 S.E.2d 594 (1996). On the issue of removal, §97-61.5(b) specifically provides:

"If the Industrial Commission finds at the first hearing that the employee has asbestosis or if the parties enter into an agreement to the fact that the employee has asbestosis, it shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis"

[Emphasis added] Plaintiff has not met the first condition to establish the diagnosis of asbestosis as a consequence of his limited period of employment with defendant. Further, plaintiff has not met the second condition, and indeed suggests that his current occupation does notcurrently exposes him "to the hazards of asbestosis."¹ Moreover, the evidence is that plaintiff worked for defendant for less than a year in 1965-66, and had left defendant's employment long before his alleged diagnosis in 1997. Thus, plaintiff has not established that he is entitled to an order of removal from employment with Weyerhaeuser. Further, 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 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 NOT ESTABLISHED ASBESTOSIS,LAST INJURIOUS EXPOSURE, AND CURRENT EXPOSUREPlaintiff 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.

First, plaintiff has not established a compensable claim for asbestosis arising out of his employment with defendant. As Deputy Commissioner Chapman accurately described in her Opinion and Award, plaintiff gave conflicting medical history concerning asbestos exposure and the results of plaintiff's medical tests do not allow for the diagnosis of asbestosis. 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, with²

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 (ATS) acknowledged that interstitial fibrosis might be present without any of the other criteria (items 3 through 6, above); however, it was recommended that a clinical diagnosis could not be made without the other criteria. Id. Applying this standard to the medical evidence in this case it can be fairly concluded that plaintiff has some form of pulmonary fibrosis, however, as the Deputy Commissioner expressed it cannot be said that the disease is asbestosis. First, the evidence of exposure is not reliable. Second, the profusion ratings on the chest films are not sufficiently consistent. Third, the evidence does not consistently establish that plaintiff has a restrictive pulmonary impairment.³ And, moreover, there is evidence that plaintiff was exposed during 6 months of employment immediately after he left defendant and plaintiff has filed a federal lawsuit contending asbestos exposure after he left Weyerhaeuser's employ; thus, even if he has the disease of asbestosis, the evidence does not establish that the last injurious exposure was with defendant. N.C. GEN. STAT. § 97-57. The competent medical evidence supports the findings made by Deputy Commissioner Chapman in this case and without competent evidence concerning exposure during plaintiff's various places of employment, the diagnosis of asbestosis and the determination of the last injurious employment cannot be made.⁴

Further, Plaintiff has not presented any evidence that employment with defendant currently exposes him to the hazards of asbestos. The undisputed evidence is that plaintiff worked for defendant for less than 12 months in 1965-66. Thus, there is no evidence that plaintiff iscurrently employed with defendant, let alone that employment with defendant is currently hazardous. The parties in this case have not stipulated that plaintiff was last injuriously exposed (30 work days inside of seven consecutive months) to asbestos while employed by defendant. Despite conflicting evidence as to whether plaintiff was hazardously exposed to asbestos after he left defendant's employ in 1966, there is no evidence that plaintiff's current employment is with Weyerhaeuser. Thus, there is no evidence to support an essential element of plaintiff's claim under § 97-61.5(b), to wit: that plaintiff's employment presents a hazardous exposure.

CONCLUSIONFor the foregoing reasons, I cannot agree that plaintiff has a compensable claim for asbestosis arising out of his employment with defendant and with his last injurious exposure occurred during that employment. Therefore, I respectfully dissent from the majority opinion.

S/_______________ DIANNE C. SELLERS COMMISSIONER

1 ¹ The evidence is conflicting concerning plaintiff's exposure to asbestosis after his employment with Weyerhaeuser. Plaintiff testified that he was not exposed to asbestos after he left Weyerhaeuser, however, he informed his doctors that he was exposed in his next job, and has filed a federal lawsuit contending exposure to asbestos at several employers, including employment after he left Weyerhaeuser in 1966. This creates a double-edged sword. If plaintiff has asbestosis and his current self-employment, or any other employment in which he is actually engaged, is "hazardous", the § 97-61.5(b) requires that we remove plaintiff from that employment. If this is correct, however, then plaintiff's last injurious exposure is with a subsequent employer and Weyerhaeuser is not liable for his claim. N.C. GEN. STAT. § 97-57. On the other hand, if plaintiff's current employment is not "hazardous," then there is no basis to order removal. 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. 334, 553 S.E.2d 680 (2001). 2 ² 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. TheDiagnosis of Nonmalignant Diseases Related to Asbestos, 134 AmericanReview of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). 3 ³ A restrictive impairment is reported on one pulmonary function test, however, is not reported on others. A restrictive impairment consistent with asbestosis does not appear and disappear; therefore, the fact that plaintiff has a restrictive impairment reported on one pulmonary function test does not reflect that that finding was from asbestosis because subsequent tests failed to confirm the condition. 4 ⁴ Plaintiff has the burden of proof; therefore, the failure to establish each element of his claim should require that his claim be denied.

***********Upon review of all of the competent evidence of record with reference to the errors assigned, and finding no good ground 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 and enters the following Opinion and Award.

***********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 as:

STIPULATIONS1. Plaintiff was employed by defendant Weyerhaeuser Company at its facility in Plymouth, North Carolina.

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

3. Plaintiff's income 52 weeks prior to his diagnosis was $28,6940.00. It was further stipulated that plaintiff's date of diagnosis was 5 May 1997.

4. 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 Plymouth, North Carolina. 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.

5. The parties are subject to the North Carolina Workers' Compensation Act, defendant Weyerhaeuser Company employing the requisite number of employees to be bound under the provisions of said Act.

6. Defendant stipulates 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 61.7. Further, that these procedures were in place during plaintiff's employment at the Plymouth facility.

7. Defendant stipulates that the medical monitoring procedures used in its asbestos medical surveillance program in all Weyerhaeuser plants in the State of North Carolina were the same.

8. Defendant stipulates that the Weyerhaeuser facilities to which Mr. Joseph Wendlick referred in his deposition transcript which has been stipulated into evidence included the facilities in North Carolina.

In addition, the parties stipulated into evidence the following:

1. A packet of documents referenced in Paragraph number 6 of the pre-trial agreement.

2. A packet of medical records and reports.

3. Depositions of Dr. Fred Dula, Dr. Phillip Lucas, Dr. John W. Wu, Dr. George L. Grauel and Dr. Richard C. Bernstein, which were previously taken in the case.

An Amendment to Complaint in Civil Action No. MDL-875 which was submitted after the hearing.

The pre-trial agreement dated 28 February 2000 which was submitted by the parties is incorporated by reference.

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

FINDINGS OF FACT1. Plaintiff, who was 74 years old at the time of the hearing before the Deputy Commissioner, began working for defendant on 1 April 1965, and left defendant's employ in February 1966. He had previously served in the military during World War II, had farmed for a number of years and had just stopped working for Stebbins Engineering where he had worked for the previous year. Defendant had a facility in Plymouth, North Carolina, which included a paper mill and a plywood mill. Plaintiff was assigned to work at the plywood mill as a machine operator. He operated a panel saw and would cut the plywood after it came out of the press.

2. Normally, the plywood was brought to plaintiff's work station by another employee operating a forklift. However, there were occasions when plaintiff ran out of wood and the forklift driver was unavailable, so plaintiff would drive the forklift to the press area and get a load of plywood which he would take to his work area. During the time of plaintiff's employment, there were occasions when his machine was down or the entire process had been shut down for some reason. On some of those occasions, plaintiff's supervisor would send him to other areas of the mill to work. Plaintiff would sometimes sweep around the press or the dryers in the plywood mill. At other times plaintiff would clean off pipes from the paper mill which the company wanted to salvage, and on a few occasions he cleaned up debris at the paper mill.

3. Both the plywood mill and the paper mill relied on steam for various processes so there were steam pipes running throughout the facility. During the eleven months of plaintiff's employment, the pipes were insulated with asbestos-containing material. One of these pipes ran above his work station and then to a press. There was also asbestos insulation inside the press itself. When a pipe would spring a leak, pipe fitters would replace or repair the affected section of pipe. Before the pipe could be repaired, however, the pipe fitters would tear off the insulation which was in the way, and after the repair had been completed, insulators would reinsulate the pipe. Insulation debris and dust created by the repair process would be swept up with the wood dust and at times would be blown with an air hose. Plaintiff testified that millwrights worked on asbestos insulation repair in his work area nearly every day during his employment. The danger of exposure to asbestos dust was not understood well at the time, so no precautions were taken to confine the dust or to protect the employees in the work area. No respiratory protection was provided.

4. Plaintiff never worked as a pipe fitter or insulator. As long as his machine was operating, he did not work directly with the insulation and was exposed to the dust only to the extent that it was in the ambient air. However, the insulation was frequently disturbed in the building where he worked and the employees there were exposed to airborne asbestos dust from the repair work being done to the pipes and machinery, from natural decay and disintegration of the insulation, from forklifts accidentally knocking off pieces of insulation and from the employees sweeping in the area, which plaintiff did every day after his shift.

5. On the occasions when plaintiff had to clean pipes, he was exposed more directly to asbestos dust since he had to scrape off any insulation which was still stuck to the pipes. He used a grinder, sander and sometimes a wire brush to clean the pipes. He also had a more direct exposure the few times that he had to cut up pipes which were being discarded. The pipes were cut with a saw and torch so that they would fit in the dumpster.

6. Plaintiff complained of having dust all over his clothing by the end of his work shift. While he operated a saw which would have produced considerable wood dust, the dust from the insulation was also in the building and was a factor.

7. Sometime in February 1966 plaintiff left his employment with defendant to take a construction job with Davie McKee, but he worked only in that capacity for approximately six weeks before starting his own business, Barber Concrete and Erecting Service. Plaintiff's company poured and finished concrete and erected grain tanks. To plaintiff's knowledge, he was not exposed to asbestos dust in either of his last two employments. He did not describe any exposure to asbestos dust prior to his employment with defendant in his testimony. Consequently, his only known exposure was the almost eleven-month period he worked for defendant.

8. In March 1997, plaintiff underwent chest x-rays and a CT scan. His films were reviewed by Dr. Fred Dula, Dr. Richard Bernstein and Dr. George Grauel, all certified B-readers. Dr. Dula opined that the findings were "consistent with asbestosis." Dr. Bernstein reported that "increased interstitial markings are seen that with the proper exposure history and latency is consistent with asbestosis. Asbestos related pleural plaques are also present." Dr. Grauel found "within the mid and lower lung ones is a fine to medium irregular opacity pattern. The opacities may be associated with an underlying pneumoconiosis."

9. On 5 May 1997, plaintiff was examined by Dr. Dennis Darcey, an occupational disease specialist at Duke Medical Center. For some unexplained reason, Dr. Darcey recorded a very different history from plaintiff than his testimony at the hearing. Dr. Darcey's notes reflect that plaintiff worked at Texas Gulf in the late 1960's, that he worked for one year as a millwright installing equipment used to produce fertilizer, that he worked alongside insulators who were insulating pipes and boilers with asbestos insulation and that he occasionally cleaned off the equipment where the insulators were working so that clouds of dust were created. Dr. Darcey's notes also state that plaintiff worked for Stebbins Engineering for two years building stock tanks at Weyerhaeuser in an area with flaking insulation. Consequently, Dr. Darcey assumed that plaintiff had a three-year exposure to asbestos dust.

10. Plaintiff explained the job history discrepancies at the hearing before the Deputy Commissioner. He testified that the Texas Gulf employment referred to by Dr. Darcey was in fact his employment with Davie McKee which did not involve exposure to asbestos. Dr. Darcey's description of the work plaintiff supposedly performed for Texas Gulf was a description of plaintiff's employment in defendant's plywood plant. Plaintiff admitted his employment with Stebbins Engineering in accordance with Dr. Darcey's notes, but again believed that Dr. Darcey got the duties of the job with Stebbins mixed up with his employment with defendant. Plaintiff maintains that his employment with Stebbins, building stock tanks, took place outside of defendant's mills and did not involve exposure to asbestos.

11. Dr. Darcey ordered a pulmonary function test which was performed on 5 May 1997 and produced results consistent with moderate restrictive disease warranting plaintiff's classification of a Class 3 Impairment Rating in accordance with AMA Guidelines. Dr. Darcey's review of the ILO chest x-ray B read report showed "interstitial and pleural changes consistent with asbestosis." He further opined that "there was also pleural plaque, bilaterally." Based upon the history of exposure, Dr. Dula's interpretation of the chest films and the pulmonary function test results, Dr. Darcey diagnosed plaintiff with asbestos-related pleural disease and asbestosis, and noted that plaintiff "is also at an increased risk for developing lung cancer and mesothelioma as a result of his asbestos exposure."

12. Plaintiff underwent repeated testing in October 1999 and his films were read by Dr. Dula, Dr. Bernstein, Dr. Grauel, Dr. Wu and Dr. Lucas. The findings were consistent with those from the earlier films with little or no evidence of progression.

13. On 5 June 2000, plaintiff was evaluated by Dr. Albert Curseen, a pulmonologist. Dr. Curseen noted that plaintiff described a daily heavy exposure to asbestos dust in the late 1960's when he worked with kegs of asbestos powder which he said he poured into a vat, exposing himself to large clouds of dust from asbestos insulation which were reported to be so thick that he could not see his co-workers in the room. Based upon the history of a severe exposure and the findings of Dr. Dula, Dr. Curseen diagnosed plaintiff with asbestosis.

14. Although plaintiff's description of his employment with defendant as it is recorded in Dr. Curseen's notes differs from the job duties described in plaintiff's testimony, plaintiff's exposure to asbestos fibers while in defendant's employ remains a constant fact, as does the existence of plaintiff's restrictive lung disease and asbestosis attributed to that exposure.

15. Plaintiff has asbestos related pleural lung disease and asbestosis. While there is some discrepancy regarding plaintiff's work history, the only evidence of exposure to asbestos occurred while plaintiff was employed with defendant, and that evidence is uncontradicted. Further, there are no contradictions regarding plaintiff's diagnoses, and no evidence that plaintiff's medical evaluations are unreliable.

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

CONCLUSIONS OF LAW1. Asbestosis is a compensable occupational disease. N.C. Gen. Stat. § 97-53(24).

2. Plaintiff has shown by the greater weight of the evidence that he suffers from the occupational diseases of asbestosis and asbestos related pleural disease, and that his exposure to asbestos while in defendant's employ is the cause of plaintiff's condition. N.C. Gen. Stat. § 97-52.

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

4. 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). Accordingly, plaintiff is not eligible for compensation pursuant to N.C. Gen. Stat. § 97-61.5.

5. Plaintiff is entitled to benefits pursuant to N.C. Gen. Stat. §97-31(24) for loss of or permanent injury to an important organ, in this case his lungs. However, the latest functional capacity evaluation undergone by plaintiff occurred on 5 May 1997. At that time, plaintiff was classified with a Class 3 Impairment Rating according to AMA Guidelines. Without a more recent evaluation, plaintiff's entitlement to a monetary award based upon loss or permanent injury to his lungs would necessarily be limited to that evaluation. Given the progressive nature of plaintiff's occupational disease, this could provide an inequitable result for plaintiff. Therefore, the Commission should reserve the issue of plaintiff's award pursuant to N.C. Gen. Stat. § 97-31(24) until plaintiff has an opportunity to undergo additional testing.

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

AWARD1. Defendant shall pay all medical expenses related to plaintiff compensable occupational disease, including past and future diagnostic testing and treatment when bills are submitted according to procedures established by the Commission.

2. The issue of the amount of plaintiff's award pursuant to N.C. Gen. Stat. § 97-31(24) is hereby reserved until plaintiff has an opportunity to undergo additional testing and those results are forwarded to the Commission.

3. Defendant shall pay the costs of this action.

This the ___ day of April, 2003.

S/___________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER