Lead Opinion

The Full Commission has reviewed the prior Opinion and Award based upon the record of the proceedings before former Deputy Commissioner Willis and Deputy Commissioner W. Bain Jones, Jr., and the briefs and oral arguments before the Full Commission. The appealing party has shown good ground to reconsider the evidence in this matter. Having reconsidered the evidence of record, the Full Commission reverses the decision of Deputy Commissioner Jones, as follows.

************* The Full Commission finds as fact and concludes as a matter of law the following, which were entered into by the parties at the hearing as:

STIPULATIONS 1. The parties are subject to and bound by the provisions of the North Carolina Workers' Compensation Act.

2. At all relevant times, an employment relationship existed between Plaintiff and Defendant/employer.

3. From September 9, 1970, to January 1, 1972, Defendant/employer was uninsured.

4. Liberty Mutual Insurance Company was the compensation carrier on the risk from January 1, 1972, through December 31, 1977.

5. Documentation has been submitted from which Plaintiff's average weekly wage might be determined.

6. Plaintiff's Social Security earnings report was stipulated into evidence.

7. Plaintiff s employment records with ITT Grinnell were stipulated into evidence.

8. Photographs of the ITT Grinnell plant were stipulated into evidence.

9. A report dated June 17, 1993, from C.D. Young, M.D. was stipulated into evidence.

10. The issue before the Industrial Commission is whether the plaintiff suffers from asbestosis or other occupational diseases for which he is eligible to receive compensation from any or all Defendants.

EVIDENTIARY RULINGS The objections raised in the depositions in this matter are OVERRULED.

************* Based upon all the competent evidence at the hearing and by deposition, the Full Commission finds additional facts as follows:

FINDINGS OF FACT 1. Plaintiff was born on January 28, 1926,

2. Plaintiff was employed by the defendant/employer as a pipe fitter from 1969 until October, 1977. Prior to his employment with Defendant/employer worked at the Newport News shipyards in Virginia. During the time Plaintiff worked at the shipyards before going to work for Defendant/employer, he was frequently exposed to significant levels of asbestos dust.

3. An employment relationship existed between Plaintiff/employee and Defendant/employer from February 1969 through October 1977.

4. The Plaintiff's employment with Defendant/employer provided exposure to asbestos materials on a regular basis. These materials included asbestos welding gloves, asbestos blankets, asbestos pipe wrap, asbestos brick, asbestos mortar, asbestos dust from the railroad car from the outside furnace, and other asbestos containing materials. The plaintiff's last injurious exposure to asbestos was with Defendant/ employer between the years 1974 through 1975. The plant stopped using asbestos-containing products in 1975.

5. Plaintiff was diagnosed with asbestosis and was advised of this condition June 24, 1991. As of the date of diagnosis, he earned $28,578.09 in his last full year of employment, his applicable average weekly wage being $549.58, which yields a workers' compensation rate of $366.39.

6. Plaintiff underwent his first and only Advisory Medical Committee examination by Dr. C. D. Young on June 3, 1993. It was Dr. Young's opinion that Plaintiff, more likely than not, had asbestosis. The Full Commission finds as a fact that plaintiff did have asbestosis.

7. The plaintiff contracted asbestosis as a result of his occupational exposure to asbestos and his last injurious exposure to asbestos was while employed with Defendant/employer. Plaintiff's exposure to asbestos in his employment placed him at an increased risk of developing asbestosis than the general public not so exposed.

8. The Full Commission gives greater weight to the testimony of Dr. C. D. Young, a member of the Advisory Medical Committee, than it does to that of Dr. Robert Rostand, a pulmonologist who treated plaintiff beginning in 1991. Dr. Rostand indicated that plaintiff's shortness of breath could be related to exposures other than asbestos and could be related to other problems, including plaintiff's weight, his smoking history and cardiovascular disease. He further testified that plaintiff does not have asbestosis but has pleural calcification or pleural thickening, which does not cause any functional pulmonary abnormalities and does not classify as asbestosis. Cross examination of Dr. Young did not change his opinion about plaintiff's suffering from asbestosis.

************* Based upon the foregoing Findings of Fact and stipulations, the Full Commission reaches the following:

CONCLUSIONS OF LAW 1. Plaintiff has asbestosis as defined by N.C. Gen. Stat. § 97-62. Plaintiff's last injurious exposure to asbestos occurred while working for Defendant/employer before the plant stopped using asbestos materials. Therefore, Plaintiff is eligible for compensation pursuant to N.C. Gen. Stat. § 97-61.5.

2. In order for the uninsured Defendant/employer to incur liability in this case, Plaintiff's last injurious exposure to asbestos must have occurred during the time Defendant/employer was uninsured, which was before January 1, 1972. Plaintiff's last injurious exposure occurred after January 1, 1972. Therefore, the uninsured Defendant/employer has no liability. Barbour v. Babcockand Wilcox Construction Company, 101 N.C. App. 564,400 S.E.2d 735 (1991).

3. The defendant/carrier Liberty Mutual was on the risk at the time of Plaintiff's last injurious exposure and is, therefore, liable for payment of compensation due Plaintiff pursuant to the Act. N.C. Gen. Stat. § 97-57.

4. As a result of his contraction of asbestosis, Plaintiff is entitled to receive weekly compensation at the rate of $366.39 per week for a period of 104 weeks commencing as of June 3, 1993. N.C. Gen. Stat. § 97-61.5.

5. Plaintiff is entitled to receive medical compensation as a result of his contraction of asbestosis, including future medical monitoring for medication and other medical needs. N.C. Gen. Stat. § 97-59.

6. Plaintiff is entitled to receive additional examinations from the advisory medical committee as a result of his contraction of an occupational disease, asbestosis. N.C.G.S. § 97-61.3; N.C. Gen. Stat. § 97-61.4.

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

AWARD 1. Plaintiff's claim for benefits is allowed against Defendant/carrier Liberty Mutual Insurance Company. All other claims against the other Defendants in this case are DENIED.

2. For Plaintiff's last injurious exposure to asbestos, Defendant/carrier Liberty Mutual, shall pay Plaintiff at the rate of $ 366.39 per week for a period of 104 weeks commencing as of June 3, 1993. Amounts which have accrued shall be paid to Plaintiff in lump sum, subject to an attorney fee approved in paragraph five of this Award.

3. The defendant/carrier Liberty Mutual shall pay all medical expenses incurred or to be incurred by Plaintiff as a result of his contraction of asbestosis and his last injurious exposure while working for defendant/employer.

4. Plaintiff shall undergo additional examinations as provided by law pursuant to the provisions of N.C. Gen. Stat. § 97-61.3 and N.C. Gen. Stat. § 97-61.4.

5. A reasonable attorney fee of twenty-five percent of the compensation due Plaintiff under paragraph one of this Award is approved for Plaintiff's counsel and shall be paid as follows: twenty-five percent of the lump sum due Plaintiff under paragraph one of this Award shall be deducted from the sum and paid directly to Plaintiff's counsel.

6. Defendant/carrier Liberty Mutual shall pay the costs.

This 21st day of July 1998.

S/ ________________________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/ ______________________ CHRISTOPHER SCOTT COMMISSIONER

DISSENTING:

S/ ______________________ DIANNE C. SELLERS COMMISSIONER

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Dissenting Opinion

I respectfully dissent from the majority decision to reverse the Deputy Commissioner's Opinion and Award.

First, there is no conclusive medical evidence that plaintiff suffers from asbestosis, as found by the majority. The closest statement is that of Dr. Clifton D. Young, who states that plaintiff has "changes of pulmonary fibrosis and pleural plaques consistent with the diagnosis of asbestosis." When questioned, Dr. Young stated that he used the phrase "consistent with" because there was not enough evidence to be definitive. The medical evidence provided by two other physicians in this case, Drs. Andrew J. Ghio and Robert Rostrand, definitively limit plaintiff's condition to pleural plaques. The Full Commission has repeatedly held that pleural plaques do not constitute asbestosis. See Gantv. Duckworth Elec. Co., Inc., (I.C. No. 134182, filed 24 June 1996; Hodges v. E.I. Dupont De Nemours Co., (I.C. No. 221748, filed 17 September 1996); Pridgen v. E.I. Dupont De Nemours Co., (I.C. No. 132426, filed 23 March 1998).

Having presented no evidence that plaintiff has asbestosis, the remaining question is whether plaintiff's pleural plaques constitute an occupational disease under N.C. Gen. Stat. § 97-52, which provides that an employee's disablement or death resulting from an occupational disease "shall be treated as the happening of an injury by accident" as defined by the Act. N.C. Gen. Stat. § 97-53 enumerates the diseases which are deemed occupational diseases within the meaning of the Act. As pleural plaques are not specifically mentioned in the statute, plaintiff must proceed under Subsection (13), which provides grounds for a claim for "[a]ny disease . . . which is proven to be due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation or employment, but excluding all ordinary diseases of life to which the general public is equally exposed outside of the employment."

The Commission has held in Hodges, that "the formation of pleural plaques does not constitute an occupational disease under N.C. Gen. Stat. § 97-53(13)." However, in Pridgen, the Full Commission awarded benefits pursuant to the statute to the plaintiff who demonstrated the existence of pleural plaques. Whether pleural plaques may or may not constitute an occupational disease has not as yet been addressed by the appellate courts. Assuming arguendo that the condition may be compensable under the statute, the following analysis is required.

First, plaintiff must satisfy the following elements:

(1) The disease is "characteristic of and peculiar to a particular trade or profession";

(2) The disease is not an ordinary disease to which the general public is equally exposed; and

(3) Exposure to a hazard in employment contributed to or was a significant causal factor, in the development of the disease.

Booker v. Medical Center, 297 N.C. 458, 472-73, 256 S.E.2d 189,198-200 (1979).

The evidence presented in this case fails to demonstrate the third element required by Booker. The exposure of plaintiff to asbestos fibers while at defendant-employer is, by his own testimony, limited to (1) his use of asbestos gloves, and (2) to the insulating wrap which was used on pipes (and the resulting ash following stress-relief heating). Witness Michael Valentine, the senior welding engineer for defendant-employer, discounted the possible use of asbestos wrap on the pipes as being counter-productive to the job, and attributed the ash plaintiff referred to as the result of protective coating on the pipes being burned off. Regarding the gloves, there is no documentation that wearing asbestos gloves might expose a worker to respirable asbestos, and Mr. Valentine testified that the gloves were no longer in use when he arrived at defendant-employer in 1974. Therefore, even if plaintiff's shortness of breath is attributable to his pleural plaques which in turn are the result of asbestos exposure, there is no evidence to demonstrate that the exposure occurred while plaintiff worked for defendant-employer. His history is one of constant, long-term exposure to asbestos from the 1940s to 1969 in prior employment. At defendant-employer's workplace, his only direct exposure was from wearing asbestos gloves. Any exposure to asbestos wrapping dust is questionable, according to Michael Valentine. Even if true, plaintiff's own testimony is that he never worked in the area where stress-relief was practiced.

Assuming without finding that in the instant case plaintiff has met his burden and established that he has an occupational disease by fulfilling the requirements as set out inBooker, it remains for plaintiff to demonstrate by the greater weight of the evidence that a disability resulted. N.C. Gen. Stat. § 97-2(9) defines "Disability" as an "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." In order to support a conclusion of disability, evidence must be presented (1) that the claimant was incapable after his injury of earning the same wages as were earned prior to the injury in the same employment; (2) that the claimant was incapable after his injury of earning the same wages as were earned before the injury in any other employment, and (3) that the claimant's incapacity to earn wages was caused by the claimant's injury. Hilliard v. ApexCabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 683 (1982).

There is no evidence in the record of this case that plaintiff has suffered a disability. Plaintiff's sole medical complaint is that he has experienced some shortness of breath, which may be attributable to his cigarette smoking, cardiovascular problems, and weight gain. Further, it is noted that plaintiff continued to work at various physical labor jobs for fourteen years after leaving defendant-employer without complaint of disability, and only stopped working when he reached retirement age of sixty-five.

For these reasons, the undersigned contends (1) that the medical evidence does not support a finding that plaintiff suffers from asbestosis; (2) that plaintiff has failed to show by the greater weight of the evidence that he was exposed to asbestos while in the employ of defendant-employer; and (3) that plaintiff has failed to demonstrate any disability resulting from his employment with defendant-employer. Accordingly, the undersigned would vote to affirm the Opinion and Award of the Deputy Commissioner.

S/ ________________________ DIANNE C. SELLERS COMMISSIONER