Ruffin v. Weyerhaeuser Co.

***********The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Glenn and the briefs and oral arguments before the Full Commission. The appealing party has shown good ground to reconsider the evidence and modify and affirm the Opinion and Award. Accordingly, the Full Commission MODIFIES and AFFIRMS the Opinion and Award of Deputy Commissioner Glenn.

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

STIPULATIONS1. The Industrial Commission has jurisdiction over the subject matter of this case, the parties are properly before the Commission, and the parties were subject to and bound by the provisions of the North Carolina Worker's Compensation Act at all relevant times.

2. Defendant was a duly qualified self-insured at all relevant times herein.

3. An employee-employer relationship existed between the parties at all relevant times. Plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from August 6, 1973, to the present.

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

5. Subsequent to the prior hearing before Deputy Commissioner Glenn, the defendant stipulated that plaintiff does suffer from an occupational disease, asbestosis, and further that he was diagnosed with asbestosis on May 29, 1998, by Dr. Darcey. Defendant further agrees that a member of the North Carolina Occupational Disease Panel confirmed this diagnosis and that these medical records will be stipulated into evidence for consideration by the undersigned.

6. It is stipulated that defendant manufactures paper and paper products, including paper for crafts, bags, boxes, and pulp for baby diapers. The approximate size of defendant's plant in Plymouth, North Carolina, is 3/4 of a mile long. The entire facility is built on approximately 350 acres and encompasses about 20 different buildings. The newest building was built in the 1960's and the vast majority of the insulation used in the original construction of the buildings was asbestos containing. Steam producing boilers are used at the facility in Plymouth, North Carolina. In addition, there are hundreds of miles of steam pipes, which were covered with asbestos insulation. The heat coming off the steam pipes is used, among other things, to dry the wet pulp/paper.

7. Plaintiff has worked for defendant doing all types of maintenance work as a pipe fitter, welder, and millwright. During his first year working for the defendant, plaintiff ran a paper machine and was exposed to asbestos from the clutches and brakes on the paper machines, which were composed of asbestos. Plaintiff also worked in areas where pipes and boilers were repaired and asbestos insulation was removed. The conditions he worked in were extremely dusty and he did not routinely wear any respiratory equipment.

8. Plaintiff's income for the fifty-two (52) weeks prior to his diagnosis on May 29, 1998, was $91,513.50, which is sufficient to justify the maximum rate allowable under the North Carolina Workers' Compensation Act for the diagnosing year, which is $532.00. By separate stipulation signed by counsel for both parties on August 13, 2002, it is stipulated that plaintiff's wages were sufficient to earn the maximum compensation benefits under the North Carolina Workers' Compensation Act in the year 2000, which was $588.00.

9. Plaintiff contends that he is entitled to an award of ten percent (10%) penalty pursuant to the provisions of N.C. Gen. Statute § 97-12, and defendant stipulated that should the claim be found compensable, defendant would agree by compromise to pay an amount of 5% of all compensation, exclusive of medical compensation, as an award of penalty pursuant thereto.

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

11. The parties further agreed that should the Industrial Commission determine N.C. Gen. Stat. §§ 97-60 through 97-61.7 to be unconstitutional, additional testimony could be offered by the parties on the issues of loss of wage earning capacity and/or disability.

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

A. Does N.C. Gen. Statute §§ 97-60 through 97-61.7 apply to plaintiff's claim for benefits, and regardless, are these statutes in violation of the Constitutions of the United States and North Carolina?

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

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

a. Dr. Dennis Darcey

b. Dr. Fred Dula

c. Dr. L.C. Rao

d. Dr. Phillip Lucas

e. Dr. Albert Curseen

f. Dr. Michael J. DiMeo

g. Dr. Michael Weaver

***********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 facility in Plymouth, North Carolina, from August 6, 1973, to the date of the hearing before the Deputy Commissioner and continuing.

2. Defendant manufactures paper and paper products, including paper for crafts, bags, boxes, and pulp for baby diapers. The approximate size of defendant's plant in Plymouth, North Carolina, is 3/4 of a mile long. The entire facility is built on approximately 350 acres and encompasses about 20 different buildings. The newest building was built in the 1960's and the vast majority of the insulation used in the original construction of the buildings was asbestos containing. Steam producing boilers are used at the facility. In addition, there are hundreds of miles of steam pipes, which were covered with asbestos insulation. The heat coming off the steam pipes is used, among other things, to dry the wet pulp/paper.

3. Plaintiff has worked for defendant doing all types of maintenance work as a pipe fitter, welder, and millwright. During his first year working for the defendant, plaintiff ran a paper machine and was exposed to asbestos from the clutches and brakes on the paper machines, which were composed of asbestos. Plaintiff also worked in areas where pipes and boilers were being repaired and asbestos insulation was removed. The conditions he worked in were extremely dusty and he did not routinely wear any respiratory equipment. He inhaled asbestos dust.

4. Plaintiff was exposed to asbestos containing materials on a regular basis for more than thirty working days or parts thereof inside of seven consecutive months from 1973 to the date of the hearing before the Deputy Commissioner.

5. The following medical records confirming the diagnosis of asbestosis were submitted for review of the Industrial Commission by counsel for the parties:

A. The medical report of Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University dated May 29, 1998. Dr. Darcey took an occupational history from plaintiff. Plaintiff was exposed to asbestos dust while employed at the Weyerhaeuser Paper Company in Plymouth, North Carolina. Plaintiff worked in all types of maintenance, including having worked as a welder, pipe fitter, and millwright. He believes sources of asbestos exposure came from the paper machine clutches and brakes, which were composed of asbestos. He also worked in areas where pipes and boilers were repaired and asbestos insulation was removed. Although he did not directly do the removal work, he was exposed as a bystander working in the same area as the removal crews. He did not routinely wear a respirator.

B. It was the opinion of Dr. Darcey, and the Full Commission finds as fact, that plaintiff has a clinical diagnosis of asbestosis based on his history as a bystander exposed to asbestos with adequate latency to develop asbestosis and an ILO chest x-ray B-read showing interstitial changes consistent with asbestosis.

C. 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-ray, because further deterioration in pulmonary function can occur even after exposure has ceased. He further recommended that plaintiff should avoid further exposure to asbestos dust. Finally, plaintiff is at some minimal increased risk of developing lung cancer and mesothelioma as a result of his asbestos exposure, compared to non-exposed individuals.

D. A CT scan and chest x-ray report dated October 25, 1997, interpreted by Dr. Fred Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader. He reports no significant changes on the CT scan. On the chest x-ray, he reports interstitial changes in the lower two-thirds of both lungs, consisting of irregular linear opacities, more evident on plain film than on CT in this patient.

E. A CT scan and chest x-ray report dated October 29, 1999, also interpreted by Dr. Fred Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader. He reports a mild ground-glass appearance to the lung parenchyma on the CT scan. On the chest x-ray, he reports interstitial changes in the middle and lower lung zones on both sides, consisting of irregular linear opacities that are definitely more evident than on the CT. It is his overall impression, and the Full Commission finds, that there are interstitial changes in a distribution that would be consistent with asbestosis.

F. Dr. L.C. Rao, a NIOSH B-reader at Pulmonary Medicine Associates, reviewed the chest x-ray dated October 29, 1999. He reports irregular opacities present in the lower, middle, and upper lung zones bilaterally of category s/t with 2/1 profusion. It was Dr. Rao's overall conclusion, and the Full Commission finds as fact, that with a significant exposure history to asbestos dust, these findings are consistent with the diagnosis of bilateral interstitial fibrosis due to asbestosis.

G. Dr. Phillip H. Lucas, a radiologist and NIOSH B-reader, reviewed the chest x-ray and CT scan dated October 25, 1997. On the chest x-ray, he reported irregular interstitial opacities observed throughout both lungs, the size and shape of which are classified as s/t and the profusion is 1/1. On the CT scan, he reported fine interstitial opacities distributed throughout both lungs, consistent with pneumoconiosis such as asbestosis. It is his overall opinion and the Full Commission finds that there are changes consistent with asbestosis in a patient who has had an adequate exposure history and latency period.

H. Dr. Michael Weaver, a B-reader at Eastern Radiologists in Greenville, reviewed several older chest x-rays dated October 9, 1989; January 23, 1991; March 5, 1992; and February 22, 1994. On all four B-read reports of these chest x-rays, he reported parenchymal abnormalities consistent with pneumoconiosis in the lower and middle lung zones with a profusion of 1/0.

I. A medical report from Dr. Curseen, a pulmonologist at Lake Norman Center for Breathing Disorders performed pulmonary functions tests on plaintiff on May 18, 1998. His total lung capacity was only 80% of predicted. Dr. Curseen classified plaintiff with a Class 2 Level of AMA Respiratory Impairment, based upon the pulmonary function tests.

J. An Advisory Medical Evaluation Report written by Dr. Michael J. DiMeo, a panel physician who examined plaintiff at the request of the North Carolina Industrial Commission on December 16, 1999. Dr. DiMeo took an occupational history of plaintiff, who reported that his first asbestos exposure began when he began working maintenance at Weyerhaeuser. Initially, Plaintiff primarily did pipe fitting in which he would hang pipes but not remove asbestos containing materials, yet he was around people who were ripping off and replacing asbestos with exposure to asbestos dust indirectly. He stated that between 1984 and 1985, they demolished two boilers. They hung "cheese cloth" between the boiler he was working on and the boilers being removed. A large amount of dust passed through the cloth. Much of this dust contained asbestos from the boilers themselves. In addition, he states that they would remove asbestos and use only red tape to demarcate the area where they were working.

K. Dr. DiMeo conducted a full physical evaluation, performed a pulmonary function test, and reviewed other medical records including chest x-ray and CT scan reports. He reports that the increased interstitial markings are prominent on the frontal view as well as bilateral. He notes that plaintiff has nonspecific interstitial changes in the lower lung zones that appear to have developed in the late 80's about 10 years after his first asbestos exposure.

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

7. Plaintiff's wages for the 52 weeks prior to diagnosis on May 29, 1998 was $91,513.50. Plaintiff's average weekly wage was sufficient to entitle him to the maximum worker's compensation rate of $588.00, the rate of compensation at the time of plaintiff's removal by Order on August 21, 2000.

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

CONCLUSIONS OF LAW1. Plaintiff contracted the occupational diseases of asbestosis and asbestos related pleural disease as a result of his employment with defendant. N.C. Gen. Stat. §§ 97-53(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. 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." Accordingly, the Commission hereby issues an Order of Removal. Id. The Order of Removal does not constitute an order removing plaintiff from his employment with defendant, but plaintiff is ordered removed from any occupational exposure to asbestos for the remainder of his employment.

4. While it has been determined that a retiree who is no longer employed by the asbestos-exposing industry is not entitled to an order of removal and the subsequent award because he no longer faces the possibility of exposure, see Austin v. General Tire, 354 N.C. 344,553 S.E.2d 680 (2001), in this case plaintiff remains in defendant's employ. It has long been recognized that the purpose of the order of removal is not only to stop continuing exposure of the employee to asbestos fibers, but also to ensure that the employee who continues to work avoids any future exposure. See Roberts v. Southeastern Magnesia andAsbestos Co., 61 N.C. App. 706, 301 S.E.2d 742 (1983). It has also long been recognized that the award of 104 weeks of compensation has the additional purpose to compensate the employee for the incurable nature of the disease. Honeycutt v. Carolina Asbestos Co., 235 N.C. 471,70 S.E.2d 426 (1952).

5. Pursuant to N.C. Gen. Stat. § 97-61.5, the weekly amount of plaintiff's 104 weeks of compensation is to be based upon his "average weekly wages before removal from the industry, but no more than the amount established annually to be effective October 1 as provided in G.S. § 97-29. . . ." The parties have stipulated that plaintiff's wages were sufficient to entitle him to the maximum compensation rate permitted under the Act for the year 1998. However, plaintiff is entitled to 104 weeks of compensation as a result of his diagnosis of asbestosis and as a result of the Industrial Commission Order of Removal, at the weekly benefit rate of $588.00, the rate of compensation at the time of plaintiff's removal by Order on August 21, 2000. N.C. Gen. Stat. §97-61.5; Roberts v. Southeastern Magnesia and Asbestos Co.,61 N.C. App. 706, 301 S.E.2d 742 (1983).

6. The issue of the constitutionality of N.G. Gen. Stat. §§ 97-60 etseq., has been raised by defendant and ruled upon by the North Carolina Court of Appeals. In Jones v. Weyerhaeuser Co., 141 N.C. App. 482,539 S.E.2d 380 (2000), disc. review denied, 353 N.C. 525, 549 S.E.2d 858 (2001), and in Clark v. ITT Grinnell Industrial Piping, Inc.,141 N.C. App. 417, 539 S.E.2d 369 (2000), the Court ruled unanimously that the provisions of N.C. Gen. Stat. § 97-61.5 are constitutional.

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

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

9. Defendant stipulated that, should the Industrial Commission determine that plaintiff contracted the occupational disease asbestosis during the course and scope of his employment with defendant, defendant would waive further proof needed under N.C. Gen. Stat. § 97-12 (the injury is caused by the willful failure of the employer to comply with any statutory requirement) and, in compromise of this issue, would accept a 5% penalty against all compensation due other than medical compensation. The Industrial Commission has so determined and defendant's offer of a compromise 5% penalty is deemed appropriate.

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

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

AWARD1. Defendant shall pay to plaintiff compensation for 104 weeks as a result of his contraction of asbestosis, and asbestos related pleural disease while employed by defendant and as a result of the Industrial Commission Order of Removal, at a weekly rate of $588.00, commencing on August 21, 2000. Said sum shall be paid in a lump sum to plaintiff without commutation, subject to the attorney's fee approved herein.

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

3. Defendant additionally shall pay interest in the amount of 8% per annum on this award from the date of the initial hearing on this claim, March, 22, 2000, until paid in full. The interest shall be paid in full to the claimant and is subject to attorneys' fees. N.C. Gen. Stat. §97-86.2.

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

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

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

7. 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.

8. Defendant shall pay the costs of this proceeding.

***********ORDER REMANDINGThis claim is hereby remanded to a deputy commissioner for further hearing, if necessary, following subsequent examinations as required under N.C. Gen. Stat. § 97-61 et seq. Plaintiff's eligibility for further indemnity compensation under the Act beyond the 104 weeks awarded herein and any other issues in controversy are hereby held in abeyance pending the outcome of further hearings.

This the 8th day of October, 2002.

S/_____________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/__________________ BERNADINE S. BALANCE COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

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

NECESSARY ELEMENTS FOR ORDER OF REMOVAL/104 WEEKSRemoval from employment under § 97-61.5, requires a finding of at least two conditions: (1) that the plaintiff has a compensable claim for asbestosis; and (2) that plaintiff is currently employed in a position that causes harmful exposure to asbestos. See Austin v. ContinentalGeneral Tire, 141 N.C. App. 397, 415, 540 S.E.2d 824, 835 (2000) (J. Greene, dissenting), reversed and adopting dissenting opinion,354 N.C. 344, 553 S.E.2d 680 (2001); Moore v. Standard Mineral Company,122 N.C. App. 375, 469 S.E.2d 594 (1996). On the issue of removal, §97-61.5(b) specifically provides:

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

[Emphasis added] Plaintiff has met the first condition for removal through the agreement of the parties and the evidence that he has asbestosis. Plaintiff, however, has not met the second condition, and indeed has presented no evidence to prove that his occupation currently "exposes him to the hazards of asbestosis." Thus, plaintiff has not established that he is entitled to an order of removal. Further, only an appropriate order of removal triggers the payment of 104 weeks of benefits. See Austin, 141 N.C. App. at 415; Moore, supra.

The application of the statutory provision regarding removal and subsequent payment of 104 weeks has a practical purpose and historical significance. By way of an explanation, employees in a dusty trade are entitled to a dusty trade card only after passing a chest x-ray examination, and for as long as their yearly chest x-rays remain clear. Upon a finding of asbestosis after clinical examination (the first panel examination), the employee's dusty trade card is revoked, prohibiting his continued employment in the dusty trade industry. The diagnosis of asbestosis and evidence of current hazardous exposure to asbestos thereby trigger an order of removal and the second and third panel examinations during which time the 104 weeks of benefits is paid. The length of the 104-week period is significant in the statutory scheme of the panel examinations. A 52-week period exists between the first and second panel examinations and another 52-week period exists between the second and third panel examinations. This accounts for the 104 weeks of benefits which are provided as a "safety net" for an employee who is suddenly prohibited from further employment in the dusty trade industry where the employee is currently hazardously exposed and whose final disability determination will not be made until after the third panel examination. Although § 97-61.5 has now been extended by the courts to non-dusty trade employment, the same principles apply. The 104 weeks of benefits is intended to compensate the employee who suddenly is prohibited from continuing in his current employment because it exposes him to the hazards of asbestos. Thus, evidence of plaintiff's current exposure to the hazards of asbestos is a critical element to be established prior to an order of removal and payment of 104 weeks of benefits.

Plaintiff has the burden of proof on the issue of current exposure to the hazards of asbestos. While plaintiff is not required to provide scientific proof of his current exposure to asbestos for purposes of § 97-61.5(b), nevertheless he must prove current exposure by the greater weight of the competent evidence. See Austin, 141 N.C. App. at 404. The Austin Court did not hold, as plaintiff suggests in this case, that plaintiff is entitled to removal without establishing that he iscurrently exposed to the hazards of asbestos. Further, § 97-61.5(b) compels removal from "hazardous exposure" to asbestos, not merely because a facility may have asbestos present, but because asbestos is present in such a form as it can be inhaled, i.e. friable. Asbestos that is non-friable, encapsulated, or in other form such that it would not be inhaled and therefore not cause or contribute to asbestosis is not, while in that form, a "hazardous" exposure. Thus, plaintiff must present evidence that there is asbestos in the facility that currently presents a hazardous exposure to him while working. See Austin,141 N.C. App. at 415.

Plaintiff has not presented any evidence that his employment with defendant currently exposes him to the hazards of asbestos. No testimony that was offered in this case. Further, no stipulation was made concerning exposure to asbestos in plaintiff's current employment. The majority finds in Finding of Fact No. 4, "plaintiff was exposed to asbestos containing materials on a regular basis for more than thirty working days or parts thereof inside of seven consecutive months from 1973 to the date of the hearing before the Deputy Commissioner." However, there is no evidence, stipulation, or reasonable inference¹ to support the finding that plaintiff is currently, hazardously exposed to asbestos. The parties stipulated that plaintiff was employed by defendant from 1973 to present. The parties also stipulated that plaintiff was last injuriously exposed (30 work days inside of seven consecutive months) to asbestos while employed by defendant. These stipulations taken together, however, do not support the majority's finding and conclusion that plaintiff was hazardously exposed "to the date of the hearing before the Deputy Commissioner." 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 whether plaintiff is currently exposed to the hazards of asbestos. Thus, there is no evidence to support an essential element of plaintiff's claim.

PLAINTIFF'S § 97-57 ARGUMENT IS MISPLACEDRather than presenting evidence of current exposure to the hazards of asbestos in his employment, plaintiff suggests that the stipulation, made pursuant to § 97-57, that plaintiff was exposed to asbestos for 30 days within a seven-month period,² 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 30 days of work subjecting the plaintiff to the hazards of asbestos is the period of last injurious exposure and the Commission's holding that plaintiff was exposed to the inhalation during the forty-eight days he worked for the defendant, such exposure must be deemed injurious." Id. at 566 [emphasis added]. However, contrary to plaintiff's argument in the instant case, the Court of Appeals in Barber did not find that a plaintiff did not have to establish current exposure to asbestos for purposes of removal; rather, the Court of Appeals explained that the plaintiff did not have to prove that his exposure to asbestos was "injurious" because § 97-57 creates a presumption that 30 days of exposure within seven months is "injurious." Id. at 566. Further, the Court in Barber did not find evidence of exposure in the last 30 days of employment based on a presumption. In fact, the Barber court had evidence of record to determine that plaintiff was exposed to asbestos during the forty-eight days that he worked for defendant. Id.

Similarly, the Supreme Court's decision in Fetner does not support plaintiff's argument that a stipulation of "last injurious exposure" is equivalent to a stipulation of current exposure. See Fetner v. RockyMount Marble Granite Works, 251 N.C. 296, 111 S.E.2d 324 (1959). InFetner, a dusty trades case, the issue was whether the exposure with a third employer for whom plaintiff only worked for eleven months was "injurious" when plaintiff was diagnosed with silicosis before he went to work for the third employer. In this case, plaintiff was diagnosed with silicosis on March 4, 1949, when he was working for the first employer, and his dusty trade card was revoked after his diagnosis. On August 10, 1950, plaintiff requested permission from the Industrial Commission to waive compensation and to go to work for the second employer. Plaintiff worked for the second employer from July 26, 1950 to October 19, 1950. Plaintiff then went to work for a third employer from November 4, 1950 to September 29, 1951. No waiver of compensation was sought for plaintiff's employment with the third employer, thereby raising the issue of whether the eleven-month employment with the third employer was "injurious" in light of the prior diagnosis of silicosis and prior revocation of plaintiff's dusty trade card based on that diagnosis. In examining the liability of the third employer, the Supreme Court held that the Commission may not arbitrarily select any thirty-day period of employment, but must select the last 30 days within a seven-month period during which the plaintiff was last exposed, as the period of "last injurious exposure." Fetner, 251 N.C. at 301. Moreover, the Supreme Court did not relieve plaintiff of the burden to present evidence on the period of hazardous exposure. Id. Competent evidence was presented and findings were made to determine when plaintiff was last exposed to the hazards of silica.

Contrary to the suggestion of plaintiff, the Fetner and Barber decisions do not abrogate the requirement of plaintiff to establish by the greater weight of the competent evidence the period of hazardous exposure. Rather, these decisions hold that § 97-57 creates for purposes of liability among two or more defendants, where plaintiff proved hazardous exposure, an irrebuttable presumption that exposure for at least 30 days during a seven-month period is an "injurious exposure." In light of the stipulation of the parties and the lack of evidence of other hazardous employment, this issue is not present in this case; the defendant has stipulated that plaintiff's "injurious exposure" occurred during his employment with defendant.

Further, the plaintiff's illogical argument that the last thirty days of employment was injurious, without producing evidence of exposure to any asbestos during this thirty-day period, directly violates the Supreme Court's holding in Fetner that the Commission may "not arbitrarily select any thirty days of employment." Fetner, 251 N.C. at 300,111 S.E.2d at 327. The relevant period under § 97-57 is the "last thirty days of employment while exposed to silica [asbestos] dust." Fetner,251 N.C. at 300, 111 S.E.2d at 327. Without evidence of current exposure to asbestos, the Commission cannot find that plaintiff has met the second element of his claim, entitling him to an order of removal, which when accomplished triggers the award of 104 weeks of benefits. See Austin,141 N.C. App. at 145; N.C. GEN. STAT. § 97-61.5(b).

Further, the Barber and Fetner cases were only in litigation due to the apparent inequity resulting from the strict application of § 97-57 designating liability on the last hazardous employment and did not arise from any disagreement concerning "current exposure." For example, liability must be placed on the last employer where the plaintiff has been exposed to the hazards of asbestos for as little as 30 days even when a prior employer may have hazardously exposed plaintiff to asbestos for more than twenty years. However, an employer who escapes liability in one case despite long exposure may be the last, short-term employer in the next case. Thus, taken from a broad view, the statute is equitable, and is consistent with the goal of the Legislature to promote judicial economy. See N.C. GEN. STAT. § 97-57.

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

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

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

Austin, 141 N.C. App. at 415, 540 S.E.2d at 835. Judge Greene's statement is consistent with the express language of the Act requiring the Commission to order removal from "any occupation that exposes him to the hazards of asbestos". If the employee is not exposed to the hazards of asbestos, there is no hazardous employment from which to order the removal and the order of removal would be a legal nullity and, hence, could not trigger an award for 104 weeks of compensation.³

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

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

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

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

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

Because this order of "removal" does not sufficiently, or actually, order plaintiff's removal from his employment with defendant, it does not satisfy the second condition for removal. Further, since the majority's order of "removal" is not in fact such an order, it does not trigger the award of 104 weeks of benefits. Austin, 141 N.C. App. at 415; Abernathy,supra; N.C. GEN. STAT. § 97-61.5(b) ("if the employee is removed from the industry the employer shall pay"); Moore v. Standard Mineral Co.,122 N.C. App. 375, 469 S.E.2d 594 (1996) (§ 97-61.5(b) applies to victims of occupational disease who are thereafter removed from the industry at the directive of the Commission).

PLAINTIFF'S § 97-61.7 ARGUMENT IS MISPLACEDPlaintiff suggests that the waiver provision of § 97-61.7 allows an employee to continue in his employment and at the same time receive the 104 weeks of benefits pursuant to § 97-61.5. Although § 97-61.7, and cases interpreting this provision,⁴ have allowed employees to obtain the 104 weeks of benefits under § 97-61.5, our courts have held that § 97-61.7 applies only after an employee has been ordered removed and awarded compensation under § 97-61.5. See Austin,141 N.C. App. at 416. Thus, § 97-61.7 does not remove plaintiff's burden to prove his entitlement to benefits under § 97-61.5(b). Plaintiff's argument that Sections 97-61.5 and 97-61.7 are to be read together was rejected by the Supreme Court in Austin that adopted the dissent of Judge Greene rather than the majority opinion of the Court of Appeals.

Moreover, in the instant claim, plaintiff has not sought a waiver from removal from the Commission. In addition, plaintiff has not presented evidence to the Commission on the issue of whether the Commission should approve a waiver of further benefits and allow plaintiff to continue in hazardous employment. Therefore, a § 97-61.7 question is not properly before the Commission.

104 WEEKS NOT APPROPRIATE COMPENSATION FOR PLAINTIFFPlaintiff also suggests that in order to provide compensation within the intent of the Act, the award of 104 weeks is necessary even though he will continue in his employment. Plaintiff's argument, however, fails to recognize that plaintiffs, who though they are not currently exposed to the hazards of asbestos and thus entitled to 104 weeks of benefits because of removal, are afforded relief for their diagnosed disease under other statutory provisions. In fact, pursuant to § 97-64, a disabled plaintiff is entitled to recover benefits under §§ 97-29, 97-30, or97-31. Abernathy, supra; Clark, 141 N.C. App. at 428-429; see Honeycuttv. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952) (entitled to ordinary compensation under the general provisions of the Act). The fallacy of plaintiff's argument was explained in Clark:

. . . defendants also contend that "most importantly, the payment of one hundred four weeks of compensation is reserved to those employees who are actually removed from their employment." (Emphasis added). This Court addressed the removal requirement in Moore v. Standard Mineral Co., 122 N.C. App. 375, 469 S.E.2d 594 (1996).

[T]he term "removal" as used by G.S. § 97-61.5 presumed medical diagnosis will occur during the hazardous employment. Thus the language regarding "removal from the industry" has specific application only to occasions when . . . identified victims of occupational disease are thereafter "removed" from hazardous industry by a directive of the Commission. However, the phrase is inapposite to instances as that sub justice wherein a claimant is diagnosed at some point subsequent to leaving hazardous employment.

Id. at 378, 469 S.E.2d at 596. . . . Clark 141 N.C. App. at 428-29. Although Moore and other decisions have questioned appropriate compensation for employees who are not entitled to removal, the Court, inClark, 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.

BENEFITS ARE WEEKLYThe majority further errs in ordering that the 104 weeks of benefits pursuant to § 97-61.5(b) "be paid in a lump sum . . . without commutation." Section 97-61.5(b) expressly refers to "weekly compensation . . . which compensation shall continue for a period of 104 weeks." This provision does not provide for a lump sum payment. As explained, infra, § 97-61.5(b) benefits are intended to sustain the diseased employee who must leave his employment because it causes a current, hazardous exposure to asbestos during the two year, 104 week, period between the first panel examination and the second panel examination. Thus, § 97-61.5(b) appropriately provides for "weekly compensation," rather than payment of benefits in a lump sum.

CONCLUSIONFor the foregoing reasons, plaintiff's claim for 104 weeks of benefits pursuant to § 97-61.5(b) must be denied. Therefore, I must respectfully dissent from the majority's opinion affirming the Deputy Commissioner's Opinion and Award.

S/_______________ DIANNE C. SELLERS COMMISSIONER

DCS/gas

1 ¹ The only possible reasonable inference that can be drawn from the position of the plaintiff is that plaintiff's continued employment does not expose him to the hazards of asbestos. As discussed below, in the section entitled "Removal From Hazardous Work," plaintiff argues that he should be able to return to his employment and has requested, as the majority has ordered, that the order of removal not remove plaintiff from his current employment. If plaintiff's current employment is sufficiently safe to allow him to return to work, this employment cannot be inferred to be hazardous. The work either presents a current hazardous exposure for which an order of removal and preclusion from a return to work should be entered, or it does not present a current hazardous exposure and plaintiff's claim for 97-61.5(b) benefits should be denied. 2 ² The stipulation of the parties reads:

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

3 ³ Plaintiff also suggests that the stipulation of the parties also requires the Commission to enter an order of removal. The stipulation states: "The parties agreed further that should plaintiff be awarded compensation, the undersigned may include language removing plaintiff from further exposure pursuant to N.C. Gen. Stat. § 97-61.5(b)." This stipulation is contingent on a finding that "plaintiff be awarded compensation" and does not otherwise abrogate the requirements of the Commission to comply with § 97-61.5(b) of the Act. 4 ⁴ Section 97-61.7 provides that "[a]n employee who has been compensated" under § 97-61.5(b) as an alternative to forced change of occupation may, subject to approval of the Industrial Commission, waive further compensation and continue his employment. Plaintiff incorrectly relies on Bye v. Interstate Granite Company, 230 N.C. 334, 53 S.E.2d 274 (1949), which preexisted the current statutory provision for an order of removal, for the proposition that plaintiff may receive an order of removal and continue to maintain his employment. A careful reading of this case reveals that the Commission did not actually order plaintiff to be removed from his employment, but, advised plaintiff that he should seek new employment based on reports from his examining physician and based on plaintiff's age and long exposure and left the decision to leave his employment to plaintiff. Significantly, the Bye decision pre-dates the changes to the Act requiring the Commission to order removal, and in fact, no order of removal was entered by the Commission in that case, therefore, Bye does not support the proposition for which it is offered by plaintiff. Plaintiff also cites Roberts v. Southeastern Magnesia Asbestos Co., 61 N.C. App. 706, 301 S.E.2d 742 (1983) for the proposition that the Commission can order plaintiff to "refrain from exposing himself to the hazards of employment" and receive 104 weeks of benefits without leaving his employment. Contrary to the suggestion of plaintiff, however, the Roberts decision stands for the proposition that a plaintiff is entitled to compensation for his removal from employment exposing plaintiff to the hazards of asbestos as an incentive to force change in occupation, or provide a "safety net", without requiring plaintiff to prove an incapacity to earn wages due to his disease.61 N.C. App. at 709. In Roberts, there was no evidence that plaintiff continued to be exposed to asbestos after his removal was ordered. The critical evidence was that plaintiff was the president of defendant-employer, that he was daily exposed to asbestos before the order of removal, regardless of the fact that defendant-employer was phasing out its use of asbestos.

Plaintiff, and the majority opinion, also inappropriately relies onHoneycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952).Honeycutt is not a § 97-61.5(b) case, and predates the current statutory removal provisions. In Honeycutt, plaintiff was diagnosed with asbestosis at which time his dusty trades card was revoked and the recommendation was made for plaintiff to obtain new employment. Plaintiff found new employment as a police officer where he earned greater wages. The issue was whether plaintiff had "disability" because he had no loss of wage earning capacity. The Supreme Court explained the difference between "disablement" applicable to asbestosis and silicosis cases and "disability" for all other injuries/diseases and held that "disablement" under § 97-54 is not the same as "disability" under § 97-2. The Supreme Court explained that for asbestosis/silicosis cases "disablement" means "the event of becoming actually incapacitated from performing normal labor in the last occupation in which [plaintiff was] remuneratively employed." In Honeycutt the Supreme Court did not approve benefits under §§ 97-61.5(b) or 97-61.7 and did not mention an order of removal or 104 weeks, as this decision predates the statutory removal provisions. Rather, the Supreme Court held that plaintiff "would be entitled to ordinary compensation under the general provisions of our Workmen's Compensation Act. G.S. § 97-61; Young v. Whitehall Co.,229 N.C. 360, 49 S.E.2d 797" (1948).