Appeal by defendants Clariant Corporation and The Travelers
Insurance Company from opinion and award entered 22 February 2001
by the North Carolina Industrial Commission. Heard in the Court of
Appeals 28 March 2002.
Wallace and Graham, P.A., by Richard L. Huffman, for
plaintiff-appellee.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Neil P.
Andrews, Angelina M. Maletto and Hatcher B. Kincheloe, for
defendant-appellants Clariant Corporation and The Travelers
Insurance Company.
Alala Mullen Holland & Cooper, P.A., by H. Randolph Sumner and
Jesse V. Bone, Jr., for defendant-appellee Liberty Mutual
Insurance Company.
MARTIN, Judge.
Plaintiff was employed by defendant Clariant Corporation(formerly Sandoz Chemicals Corporation) as a pipe fitter and
insulator from 24 June 1968 until 30 June 1993. On 16 February
1996, plaintiff filed a claim alleging that he was suffering from
asbestosis as a result of his exposure to asbestos in connection
with his employment. Defendants denied the claim.
Briefly summarized, the evidence tended to show that plaintiff
testified he was exposed to asbestos while working in pipefitting,
insulation, construction and maintenance work for defendant
employer. Plaintiff testified that defendant employer used twenty
different asbestos materials while he was employed there, and that
he was exposed to asbestos “someway or other” up until the day he
quit. Plaintiff testified that he retired in 1993, at the age of
63, in part because he “wasn't up to par” and that he “couldn't
keep up.” Although Bobby Cleveland, plaintiff's supervisor for
many years, testified that from 1990 until 1993, he had no
knowledge that plaintiff was exposed to asbestos fibers, John
Evans, a co-worker of plaintiff during the period, testified that
he worked in defendant's salvage yard between 1991 and 1993, and
that plaintiff often worked in the yard tearing off insulation and
disposing of it in hazardous waste dumpsters. Evans stated that
the conditions were very dusty.
After a chest x-ray in early 1995, and a subsequent CT scan,
which showed abnormalities, plaintiff was examined by Dr. Douglas
G. Kelling, Jr., on 25 August 1995. Dr. Kelling diagnosed
plaintiff as suffering with asbestosis. Defendant Liberty Mutual
was the workers' compensation insurance carrier for defendantemployer from 31 October 1980 until 31 October 1991; defendant
Travelers Insurance Company was the carrier from 31 October 1991
until plaintiff's retirement on 30 June 1993.
A deputy commissioner determined that plaintiff was
injuriously exposed to the hazards of asbestos during his
employment with defendant employer and that plaintiff has
asbestosis. The deputy commissioner awarded plaintiff 104 weeks of
compensation pursuant to G.S. § 97-61.5. The deputy commissioner
further determined that defendant Travelers was on the risk at the
time of plaintiff's last injurious exposure and is, therefore,
liable for payment of the compensation.
Defendants Clariant and Travelers appealed to the Full
Commission. The Full Commission entered its opinion and award
affirming the deputy commissioner. Defendants Clariant and
Travelers appeal to this Court.
_______________
I.
Defendants Clariant and Travelers assign error to the
Commission's determination that plaintiff is entitled to 104 weeks
of compensation pursuant to G.S. § 97-61.5 because plaintiff had
already retired at the time he was diagnosed with asbestosis and,
therefore, was not “removed” from the occupation giving rise to the
hazard. At oral argument, the parties agreed that the issue has
been settled by the decision of the North Carolina Supreme Court in
Austin v. Continental General Tire, 354 N.C. 344, 553 S.E.2d 680
(2001), and that plaintiff does not qualify for benefits under the
statutory scheme of G.S. § 97-61.5. In Austin, a majority of adivided panel of this Court held that the plaintiff was entitled to
compensation under G.S. § 97-61.5, despite the fact that the
plaintiff had already retired from the company prior to being
diagnosed with asbestosis. Austin v. Continental General Tire, 141
N.C. App. 397, 540 S.E.2d 824 (2000). The majority held that it
was not necessary for the plaintiff to be removed from his
employment in order to qualify for 104 weeks of compensation under
the statute. Judge Greene dissented, stating:
The unambiguous language of section 97-61.5(b)
requires an employee to be “removed” from his
employment as a prerequisite to receiving the
104 weeks of compensation provided for in the
statute . . . . An employee who is no longer
employed at the time he is diagnosed with
asbestosis, therefore, may not, under the
plain language of section 97-61.5(b), proceed
with a workers' compensation claim under this
statute.
Id. at 415, 540 S.E.2d at 835. Judge Greene stated that G.S. § 97-
64 provides the sole remedy for the plaintiff's asbestos related
illness. In a per curiam opinion, the Supreme Court adopted Judge
Greene's dissent and reversed, remanding the case to this Court for
further remand to the Industrial Commission for proceedings
consistent with the dissent. Austin v. Continental General Tire,
354 N.C. 344, 553 S.E.2d 680 (2001). Under G.S. § 97-64, “the
legislature established the general rule that an employee becoming
disabled by asbestosis or silicosis within the terms of the
specific definition embodied in G.S. § 97-54 should be entitled to
ordinary compensation measured by the general provisions of the
Workmen's Compensation Act.” Young v. Whitehall Co., 229 N.C. 360,
366, 49 S.E.2d 797, 801 (1948). Thus, we must reverse theCommission's award of compensation pursuant to G.S. § 97-61.5 and
remand this case to the Industrial Commission for a determination
as to whether plaintiff is entitled to compensation under G.S. §
97-64.
II.
Defendants Clariant and Travelers next contend the Industrial
Commission erred in calculating plaintiff's average weekly wage.
The deputy commissioner recited, in her opinion and award, the
following stipulation: “4. Plaintiff's average weekly wage was
$611.49, yielding a compensation rate of $470.66.” Defendants
contend they did not stipulate to the average weekly wage and
direct us to the pre-trial agreement, which states: “The plaintiff
contends the average weekly wage was $611.49 which provides a
compensation rate of $470.66.” Plaintiff responds that defendants
did not properly preserve the deputy commissioner's allegedly
erroneous recitation for review by the Full Commission, thereby
waiving their right to a review of the issue. Therefore, plaintiff
contends, the issue is not properly before this Court for review.
Industrial Commission
Rule
701(2) states:
After receipt of notice of appeal, the
Industrial Commission will supply to the
appellant a Form 44 Application for Review
upon which appellant must state the grounds
for the appeal. The grounds must be stated in
particularity, including the specific errors
allegedly committed by the Commissioner or
Deputy Commissioner and, when applicable, the
pages in the transcript on which the alleged
errors are recorded. Failure to state with
particularity the grounds for appeal shall
result in abandonment of such grounds . . . .
However, in
Tucker v. Workable Company, 129 N.C. App. 695, 701, 501S.E.2d 360, 365 (1998) (citations omitted), this Court held that
“[a]lthough Rule 701 provides that appellant must state with
particularity the grounds for appeal,”
[t]his Court has held that when the matter is
“appealed” to the full Commission pursuant to
G.S. 97-85, it is the duty and responsibility
of the full Commission to decide all of the
matters in controversy between the parties.
Id. (citing
Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374
S.E.2d 610 (1988)).
In the present case, although defendants did not state with
particularity, in their Form 44 application for review by the Full
Commission, their contention that the deputy commissioner's
recitation of the stipulation was error, defendant did state:
“Deputy Commissioner Taylor erred in using Plaintiff's last full
year of employment to calculate his average weekly wage.” We hold
the language was sufficient to preserve the issue of the proper
calculation of plaintiff's average weekly wage for review.
As we have held in Section I of this opinion, though plaintiff
does not qualify for compensation pursuant to G.S. § 97-61.5, he
is nevertheless entitled to pursue a claim for compensation
pursuant to G.S. § 97-64. That statute provides: “[e]xcept 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.” Disablement from asbestosis is defined as “the
event of becoming actually incapacitated because of asbestosis . .
. to earn, in the same or any other employment, the wages which theemployee was receiving at the time of his last injurious exposure
to asbestosis . . . .” N.C. Gen. Stat. § 97-54.
If, on remand, plaintiff establishes his disablement from
asbestosis, and his entitlement to compensation pursuant to G.S. §
97-64, the Commission must determine his average weekly wage. This
Court, in
Moore v. Standard Mineral Company, 122 N.C. App. 375, 469
S.E.2d 594 (1996), held that the proper date for determining the
average weekly wage of a plaintiff for the purpose of determining
benefits under G.S. § 97-61.5 was as of the time of injury, which
was deemed to be the date of diagnosis of silicosis or asbestosis.
In
Moore, however, the plaintiff
was still earning a wage when he
was diagnosed, albeit in other employment. The Court noted that,
“[i]n so holding,”
we emphasize that the situation of a claimant
no longer employed in any capacity at the time
of diagnosis is not before us, and that
legislative action to address such an instance
may well be required to fulfill completely the
intended purpose of compensating workers who
have contracted occupational diseases.
Id. at 380, 469 S.E.2d at 598 (emphasis added). Indeed, Judge
Greene acknowledged, in his dissent in
Austin,
the “removal” requirement of section 97-
61.5(b) raises concerns regarding whether an
employee who chooses to remove himself from
employment prior to a diagnosis of asbestosis
should be precluded from receiving 104 weeks
of compensation under section 97-61.5(b). For
example, this statute may encourage employees
who are exposed to asbestos to remain in their
employment until they receive a diagnosis of
asbestosis. These concerns, however, should
not be resolved by this Court; rather, the
proper forum for addressing these concerns is
in the Legislature.
Austin, 141 N.C. App. at 416, 540 S.E.2d at 836 (citing
Moore,
supra). Thus, the holding in
Moore, that the average weekly wage
is computed as of the date of diagnosis, is not applicable to the
case before us since plaintiff in the present case was no longer
employed in any capacity at the time he was diagnosed with
asbestosis.
Under the general provisions of the Workers' Compensation Act,
G.S. § 97-2(5) “provides a hierarchy” of five methods for computing
average weekly wages.
McAninch v. Buncombe County Schools, 347
N.C. 126, 130, 489 S.E.2d 375, 378 (1997). The final method,
contained in the second full paragraph of G.S. § 97-2(5) provides:
But where for exceptional reasons the
foregoing would be unfair, either to the
employer or employee, such other method of
computing average weekly wages may be resorted
to as will most nearly approximate the amount
which the injured employee would be earning
were it not for the injury.
N.C. Gen. Stat. § 97-2(5). This final method “may not be used
unless there has been a finding that unjust results would occur by
using the previously enumerated methods.”
McAninch, 347 N.C. at
130, 489 S.E.2d at 378 (citation omitted).
In the present case, it would be obviously unfair to calculate
plaintiff's benefits based on his income upon the date of diagnosis
because he was no longer employed and was not earning an income.
And, since the General Assembly has made no specific provision for
determining compensation pursuant to G.S. § 97-64 when a former
employee is diagnosed with asbestosis some time after his removal
from the employment, the only statutory provision which may infairness be used is the method recited above. Plaintiff testified
that he retired from defendant company in 1993 because he “wasn't
up to par” and “couldn't keep up” in his job duties. He also
stated he would have liked to keep working until he was 65 but his
“health wasn't that good.” Because plaintiff contracted asbestosis
by working around asbestos for 25 years at defendant employer, the
only fair method for determining his average weekly wage is using
his latest full year of employment with defendant company, which
appears to be the same figure the deputy commissioner and the Full
Commission used in their calculations of plaintiff's average weekly
wage. Accordingly, in remanding this case to the Industrial
Commission for a determination of plaintiff's entitlement to
compensation pursuant to G.S. § 97-64, we also instruct the
Commission, if it determines plaintiff is entitled to compensation,
to calculate plaintiff's average weekly wage in accordance with the
method prescribed by the second full paragraph of G.S. § 97-2(5).
III.
Defendants Clariant and Travelers also assign error to the
Commission's determination that Travelers was the carrier on the
risk at the time of plaintiff's last injurious exposure. In our
review of an opinion and award of the Industrial Commission,
findings of fact “are conclusive on appeal when supported by
competent evidence, even though there be evidence that would
support findings to the contrary.”
Jones v. Myrtle Desk Co., 264
N.C. 401, 402, 141 S.E.2d 632, 633 (1965).
G.S. § 97-57 provides: In any case where compensation is payable
for an occupational disease,
the employer in
whose employment the employee was last
injuriously exposed to the hazards of such
disease, and the insurance carrier, if any,
which was on the risk when the employee was so
last exposed under such employer, shall be
liable.
For the purpose of this section when
an
employee has been exposed to the hazards of
asbestosis or silicosis for as much as 30
working days, or parts thereof, within seven
consecutive calendar months, such exposure
shall be deemed injurious but any less
exposure shall not be deemed injurious . . .
(emphasis added).
As defendants conceded during oral argument, sufficient “competent
evidence” was presented in the hearing to warrant the Commission's
finding. Plaintiff stated that he worked around asbestos in one
way or another up until the day he retired, and that he worked
directly with asbestos approximately four days a week from 1991 to
1993. Another employee, John Evans, testified that plaintiff would
be down at the salvage yard two or three times a week, “taking down
pipe” which contained asbestos, and doing other work. The salvage
yard was very dusty with levels of asbestos present. Scientific
evidence is not required to prove the causal connection between
exposure to asbestos and the contracting of asbestosis.
Clark v.
ITT Grinnell Ind. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369
(2000),
remanded for reconsideration on other grounds, 354 N.C.
572, 558 S.E.2d 867 (2001);
See also Gay v. J.P. Stevens & Co., 79
N.C. App. 324, 339 S.E.2d 490 (1986);
McCuiston v. Addressograph-
Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983). Defendants'
assignments of error related to these arguments are overruled, and
the Commission's determination that Travelers “was on the risk atthe time of plaintiff's last injurious exposure” is affirmed.
Therefore, upon remand, defendant Liberty Mutual Insurance Company
shall be dismissed as a party to this action.
Affirmed in part, reversed in part, and remanded.
Judges TYSON and THOMAS concur.
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