1. Constitutional Law--standing--equal protection--workers' compensation defendant
The argument of a workers' compensation defendant that it had standing to raise an equal
protection argument against a special compensation scheme for workers suffering from
asbestosis or silicosis was tenuous at best. The class discriminated against, if any, would be the
larger class of employees who have contracted other occupational diseases.
2. Constitutional Law--equal protection--asbestosis and silicosis compensation
Defendant-employer's equal protection rights were not violated by N.C.G.S. § 97-61.5, a
workers' compensation statute providing special compensation for workers suffering from
asbestosis or silicosis. Defendant conceded that there was no suspect class or fundamental right
affected by the statute and the classification made by the legislature was rationally related to a
legitimate governmental interest, to account for the incurable, latent and unique nature of these
diseases, factors not apparent in other occupational diseases.
Judge GREENE concurring.
Hilliard & Jones, by Maola Jones, and The Law Offices of Robin E. Hudson, by Samuel A.
Scudder, for plaintiff-appellee.
Teague, Campbell, Dennis & Gorham, L.L.P., by Robert C. Kerner, Jr. and Tracey L. Jones,
for defendant-appellant.
McGEE, Judge.
Weyerhaeuser Company (defendant) appeals an opinion and award
of the North Carolina Industrial Commission (the Commission)
entered 25 February 1999 pursuant to N.C. Gen. Stat. § 97-86
(1999). A deputy commissioner filed an opinion and award on 30
July 1998 awarding workers' compensation benefits to plaintiff
Eddie G. Jones. The Commission entered an opinion and award
affirming and modifying the deputy commissioner's award. The Commission found that plaintiff was employed by defend
ant
for more than thirty-one years as a pipe fitter, maintenance
mechanic, and millwright, beginning in 1966. The parties
stipulated that plaintiff was exposed to asbestos fibers during his
employment with defendant. Defendant transferred plaintiff to the
finishing department in 1989 because he was diagnosed with a
"probable" asbestos-related lung condition.
The Commission's findings of fact included: (1) plaintiff had
proven by the greater weight of the evidence that he had developed
asbestosis; (2) plaintiff's employment was a significant
contributing factor in the development of his asbestosis;
(3) plaintiff's employment placed him at an increased risk of
developing asbestosis compared to members of the general public;
and (4) plaintiff's last injurious exposure to asbestos fibers
ended in 1989 when he was transferred to the finishing department.
Based upon its findings of fact, the Commission concluded that
plaintiff developed asbestosis as defined by N.C. Gen. Stat. §§ 97-
53(24) (1999) and 97-62 (1999). The Commission awarded plaintiff
benefits of $376.00 per week for 104 weeks, pursuant to N.C. Gen.
Stat. § 97-61.5(b) (1999), and concluded that the provisions of
N.C.G.S. § 97-61.5 were not unconstitutional. Defendant appeals.
[1]Defendant argues that the Commission erred in its finding
of fact and conclusion of law that the provisions of N.C.G.S. § 97-
61.5 are not unconstitutional. Defendant contends that the statute
denies it equal protection of the law under both the North Carolina
Constitution and the United States Constitution because the statute
treats employers with employees who are exposed to asbestos andsilica differently than employers with employees who are not
exposed to asbestos and silica. In response, plaintiff contends
that defendant does not have standing to challenge the
constitutionality of N.C.G.S. § 97-61.5.
(See footnote 1)
"The general rule is that 'a person who is seeking to raise
the question as to the validity of a discriminatory statute has no
standing for that purpose unless he belongs to the class which is
prejudiced by the statute.'" In re Appeal of Martin, 286 N.C. 66,
75, 209 S.E.2d 766, 773 (1974) (citation omitted); see also Roberts
v. Durham County Hospital Corp., 56 N.C. App. 533, 289 S.E.2d 875
(1982), aff'd per curiam, 307 N.C. 465, 298 S.E.2d 384 (1983);
Apartments, Inc. v. Landrum, 45 N.C. App. 490, 263 S.E.2d 323
(1980); State v. Vehaun, 34 N.C. App. 700, 239 S.E.2d 705 (1977).
The statute presently challenged is N.C.G.S. § 97-61.5(b), which
states:
If the Industrial Commission finds at the
first hearing that the employee has either
asbestosis or silicosis or if the parties
enter into an agreement to the effect that the
employee has silicosis or asbestosis, it shall
by order remove the employee from any
occupation which exposes him to the hazards ofasbestosis or silicosis, and if the employee
thereafter engages in any occupation which
exposes him to the hazards of asbestosis or
silicosis without having obtained the written
approval of the Industrial Commission as
provided in G.S. 97-61.7, neither he, his
dependents, personal representative nor any
other person shall be entitled to any
compensation for disablement or death
resulting from asbestosis or silicosis;
provided, that if the employee is removed from
the industry the employer shall pay or cause
to be paid as in this subsection provided to
the employee affected by such asbestosis or
silicosis a weekly compensation equal to
sixty-six and two-thirds percent (66 . %) of
his average weekly wages before removal from
the industry, but not more than the amount
established annually to be effective October 1
as provided in G.S. 97-29 or less than thirty
dollars ($30.00) a week, which compensation
shall continue for a period of 104 weeks.
The statute thus provides a special compensation scheme for workers
suffering from asbestosis or silicosis -- a narrow class of
occupational disease-suffering employees. Accordingly, the class
discriminated against, if any, would be the larger class of
employees who have contracted occupational diseases other than
asbestosis or silicosis. Defendant's argument, however, is that
because its business exposed its workers to asbestos, defendant is
"burdened with additional liability for workers compensation
benefits, with which similarly situated employers" (whose
businesses did not expose their workers to asbestos or silica) are
not so burdened. Defendant's argument is at best tenuous.
[2]Nonetheless, even assuming arguendo that defendant does
have standing to assert a constitutional challenge to N.C.G.S.
§ 97-61.5, we agree with the Commission that the statute is not
unconstitutional. See Roberts, 56 N.C. App. at 539, 289 S.E.2d at
878-79 ("Assuming that plaintiffs had standing to attack N.C. Gen.Stat. § 1-15(c), the statute is not unconstitutionally
discriminatory."). Equal protection, as guaranteed by the United
States Constitution and Article I, Section 19 of the Constitution
of North Carolina, "requires that all persons similarly situated be
treated alike." Walters v. Blair, 120 N.C. App. 398, 400, 462
S.E.2d 232, 233 (1995) (citation omitted), aff'd per curiam, 344
N.C. 628, 476 S.E.2d 105 (1996). In evaluating the
constitutionality of a statute, the Walters Court stated,
If the statute impacts upon a suspect class or
a fundamental right, the government must
"demonstrate that the classification is
necessary to promote a compelling governmental
interest" (strict scrutiny). If the statute
does not impact upon a suspect class or a
fundamental right, it is only necessary to
show that the classification created by the
statute bears a rational relationship to or
furthers some legitimate state interest
(minimum scrutiny).
Id. at 400, 462 S.E.2d at 234 (internal citations omitted).
Defendant concedes, and we agree, that no suspect class or
fundamental right is affected by the statute; however, defendant
contends that the statute cannot survive even minimum scrutiny.
Our Court has discussed the rational basis test:
"The constitutional safeguard (of equal
protection) is offended only if the
classification rests on grounds wholly
irrelevant to the achievement of the State's
objective. State legislatures are presumed to
have acted within their constitutional power
despite the fact that, in practice, their laws
result in some inequality. A statutory
discrimination will not be set aside if any
statement of facts reasonably may be conceived
to justify it."
Roberts, 56 N.C. App. at 539, 289 S.E.2d at 879 (emphasis added)
(quoting McGowan v. Maryland, 366 U.S. 420, 425-26, 6 L. Ed. 2d393, 399 (1961)). Defendant cannot overcome the high hurdle
established by application of the rational basis test.
Our Supreme Court has set out the importance of the asbestosis
and silicosis statutes and the necessary distinction between those
diseases and other occupational diseases:
[P]roper consideration of the special
provisions of the statutes relating to
asbestosis and silicosis must rest upon a
conviction that in passing these laws the
Legislature gave due heed to the nature of
these diseases.
The definition of silicosis itself makes
it plain that the legislators approved the
amendment covering occupational diseases with
full knowledge that silicosis is a disease of
the lungs contracted by breathing air
containing silica dust. Besides, an analysis
of the pertinent sections as a whole indicates
that the lawmakers acted with an awareness of
the discoveries of medicine and industry that
silicosis is characterized by shortness of
breath, decreased chest expansion, lessened
capacity for work, reduced vitality, and a
marked susceptibility to tuberculosis; that
the average time before symptoms of the
disease develop is from ten to fifteen years;
that silicosis is incurable; that whether
silicosis will result in death or disability
to a particular worker is dependent on his
susceptibility to the affliction and the
duration and intensity of his exposure to
silica dust; and that silicosis is a
progressive disease, the lung changes
continuing to develop for one or two years
after complete removal of the worker from
silica hazard.
. . . .
When the special provisions of the
occupational disease amendment relating to
asbestosis and silicosis are read in their
entirety, it is apparent that they are
designed to effect these objects: (1) To
prevent the employment of unaffected persons
peculiarly susceptible to asbestosis or
silicosis in industries with dust hazards;
(2) to secure compensation to those workersaffected with asbestosis or silicosis, whose
principal need is compensation; and (3) to
provide compulsory changes of occupations for
those workmen affected by asbestosis or
silicosis, whose primary need is removal to
employments without dust hazards.
Obviously, the Legislature enacted
[N.C.G.S. § 97-61.5] for the paramount purpose
of securing to an affected worker undergoing a
compulsory change of occupation an independent
position as a wage earner in some work free
from dust hazards. When the language of the
statute is considered in the light of the
mischief sought to be avoided and the remedies
intended to be applied, it becomes manifest
that the Legislature has authorized the
Industrial Commission to order a forced change
of occupation for an employee affected by
asbestosis or silicosis only in case it
appears to the Commission that there is a
reasonable basis for the conclusion that such
employee possesses the actual or potential
capacity of body and mind to work with
substantial regularity during the foreseeable
future in some gainful occupation free from
the hazards of asbestosis and silicosis. . . .
[A] contrary interpretation must necessarily
be based upon the absurd premise that the
lawmakers legislated in ignorance of, or with
indifference to, the self-evident facts that
the incapacity of a workman affected by
asbestosis or silicosis to adapt himself to
new employment or the progression of his
disease may render it impossible for him to
obtain or follow a gainful occupation in a new
sphere of activity.
Young v. Whitehall Co., 229 N.C. 360, 365-68, 49 S.E.2d 797, 800-03
(1948) (internal citations omitted).
Moreover, our Supreme Court found significant "the distinction
made by the Legislature between asbestosis and silicosis, and other
occupational diseases[.]" Honeycutt v. Asbestos Co., 235 N.C. 471,
476, 70 S.E.2d 426, 430 (1952). "An employee does not contract or
develop asbestosis or silicosis in a few weeks or months. These
diseases develop as the result of exposure for many years toasbestos dust or dust of silica. Both diseases, according to the
textbook writers, are incurable and usually result in total
permanent disability." Id. at 476-77, 70 S.E.2d at 430.
Thus, under Roberts, the classification made by the General
Assembly is, at a minimum, rationally related to a legitimate
governmental interest. 56 N.C. App. at 539, 289 S.E.2d at 879.
Although defendant cites Walters, 120 N.C. App. 398, 462 S.E.2d
232, in support of its contention that N.C.G.S. § 97-61.5 is
unconstitutional, we find that case readily distinguishable. In
Walters, the plaintiff-employee challenged the constitutionality of
N.C. Gen. Stat. § 97-63 (1991), which required claimants suffering
from asbestosis or silicosis to have been employed in North
Carolina for two years. The purposes of that statute were to
"prevent[] [] forum shopping and [to] protect[] against claims for
which the employer is not responsible." Id. at 401, 462 S.E.2d at
234. Our Court held that, while those were legitimate state
interests, "the statute is grossly underinclusive in that it does
not include all who are similarly situated." Id. (citations
omitted).
The statute at issue in Walters imposed upon claimants
suffering from asbestosis or silicosis an additional burden for
recovery not so imposed on claimants with other occupational
diseases. The purposes for which the statute was enacted were
equally applicable to all claimants suffering from occupational
diseases. Conversely, N.C.G.S. § 97-61.5 was enacted as an added
benefit to employees suffering from asbestosis or silicosis, and
its purpose was to account for the incurable, latent, and uniquenature of asbestosis and silicosis, factors not apparent in other
occupational diseases. Accordingly, Walters is inapplicable to the
case before us, and defendant's argument is without merit.
The opinion and award of the Commission is affirmed.
Judge EDMUNDS concurs.
Judge GREENE concurs with a separate opinion.
EDDIE G. JONES,
Employee,
Plaintiff;
&
nbsp; From the North Carolina
v
.
Industrial Commi
ssion
&
nbsp; I.C. No. 177613
WEYERHAEUSER COMPANY,
Employer;
SELF-INSURED,
Defendant.
GREENE, Judge, concurring.
I write separately because I believe defendant has standing to raise a constitutional challenge
to N.C. Gen. Stat. § 97-61.5.
Any party who “alleges some direct injury in fact” has standing to challenge the
constitutionality of a statute. See Greene v. Town of Valdese, 306 N.C. 79, 88, 291 S.E.2d 630, 636
(1982). Defendant argues in its brief to this Court that employers such as itself “whose workers have
had occupational exposure to asbestos and silica are burdened with additional liability for workers[']
compensation benefits, with which similarly situated employers are not so burdened.” This alleged
additional liability, which is not imposed on similarly situated employers, would cause a direct injury
to defendant. Accordingly, defendant has standing to bring its claim that section 97-61.5 is
unconstitutional. Otherwise, I fully concur in the majority's opinion.
*** Converted from WordPerfect ***