Lead Opinion

*********** Upon review of the competent evidence of record with reference to the errors assigned, and finding no good grounds to receive further evidence or to rehear the parties or their representatives, the Full Commission upon reconsideration of the evidence modifies and affirms the Opinion and Award of the Deputy Commissioner.

*********** The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing before the Deputy Commissioner and in a Pre-Trial Agreement as:

STIPULATIONS 1. 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 Workers' Compensation Act at all relevant times.

2. Defendant is a duly qualified self-insured.

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 26 November 1951 to 2 August 1998.

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

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

6. Plaintiff has worked as a laborer, helper, assistant boiler operator and boiler operator during his years of employment with Defendant. While he worked in the boiler areas, he was exposed to asbestos insulation materials that were loose and falling off the overhead pipes and boilers. He was often in the vicinity of the pipe fitters that removed insulation in order to work on the pipes. He would notice the asbestos dust in the air when they were working on the pipes. He was heavily exposed when he had to use a high-pressure air hose to blow down the floors, which created clouds of dust that he inhaled from the insulation materials. He did not wear a respirator in the normal performance of his job activities.

7. Plaintiff's income 52 weeks prior to his diagnosis of asbestosis on 9 December 1997 was $60,418.00, which is sufficient to justify the maximum rate allowable under the North Carolina Workers' Compensation Act for the diagnosing year, which is $512.00.

8. Plaintiff contends that he is entitled to an award of a 10% penalty pursuant to the provisions of N. G. Gen. Statute § 97-12, and defendant agreed that should the claim be found compensable, defendant agreed by compromise to pay an amount of 5% of all compensation, exclusive of medical compensation, as an award of penalty pursuant thereto.

9. 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. § 97-62-5(b).

10. The parties further agreed that should the undersigned 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.

11. Subsequent to the hearing before the Deputy Commissioner, the transcripts from the depositions of the following medical experts were submitted for review:

A. Dr. Albert Curseen [June 23, 2000 and July 28, 2000]

B. Dr. James Merchant [May 15, 2000 and August 23, 2000]

C. Dr. Phillip Lucas [August 22, 2000]

D. Dr. Richard Bernstein [January 18, 2000 and July 27, 2000]

E. Dr. John Wu [August 15, 2000]

F. Dr. James C. Johnson [January 24, 2000 and August 24, 2000]

G. Dr. Allen Hayes [February 17, 2000 and August 23, 2000]

H. Dr. Michael DiMeo [April 11, 2000, May 25, 2000, August 7, 2000]

*********** Based upon all the competent evidence adduced at the hearing and the reasonable inferences therefrom, the Full Commission makes the following:

FINDINGS OF FACT 1. This matter came on for hearing before the Commission after plaintiff's first examination and medical reports establishing that he has asbestosis. Plaintiff was diagnosed with asbestosis on 9 December 1997, and he retired from employment with defendant on 2 August 1998. At this first hearing the Commission is limiting its determination to whether plaintiff has asbestosis and plaintiff is entitled to a removal order and 104 weeks of compensation and medical benefits.

2. Plaintiff has contracted asbestosis and asbestosis-related pleural disease as a result of his injurious exposure to the hazards of asbestos while employed by defendant, Weyerhaeuser Company.

3. Plaintiff was employed by defendant, Weyerhaeuser Company, at its facility in Plymouth, North Carolina, from 26 November 1951 to 2 August 1998.

4. Plaintiff has worked as a laborer, helper, assistant boiler operator and boiler operator during his years of employment with Defendant. While he worked in the boiler areas, he was continuously exposed to asbestos insulation materials that were loose and falling off the overhead pipes and boilers. He was often exposed to asbestos dust when pipe fitters removed deteriorating asbestos insulation from pipes in his vicinity. He was heavily exposed to asbestos dust when he used a high-pressure air hose to blow down the floors, creating clouds of dust from asbestos and other sources. He did not wear a respirator in the normal performance of his job activities.

5. Plaintiff was continuously exposed to asbestos containing materials on a regular basis for more than thirty working days or parts thereof inside of seven consecutive months from 1951 to the date of his retirement on 2 August 1998.

6. Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University examined plaintiff on 9 December 1997. Plaintiff gave Dr. Darcey a history of working for defendant as a laborer, helper, assistant boiler operator and boiler operator. In the boiler area plaintiff was exposed to asbestos insulation materials which were loose and falling off the overhead pipes. Plaintiff was also exposed to asbestos dust from insulation materials when he removed ashes from the boilers. Plaintiff used a high pressure hose to clean floors which resulted in clouds of dust which plaintiff inhaled. Plaintiff reported to Dr. Darcey that he believed the dust contained asbestos from insulation materials. When Dr. Darcey examined plaintiff, plaintiff reported shortness of breath with exercise and was unable to climb more than two to three flights of steps before "giving out." He was able to continue performing his job duties, but had to occasionally stop to rest and catch his breath.

7. Dr. Darcey reviewed a chest x-ray and a CT scan taken on 16 September 1997. He found parenchymal abnormalities "including irregular opacities, shape and size, t/t, in the middle and lower lung zones bilaterally with a I/0 profusion." He further found pleural plaques bilaterally on the chest wall. It was the opinion of Dr. Darcey that plaintiff has pleural plaques consistent with asbestos exposure and mild interstitial changes consistent with early mild asbestosis.

8. Dr. Albert Curseen, a pulmonologist at Lake Norman Center for Breathing Disorders saw plaintiff on 30 August 1999 for an evaluation. After a full physical evaluation and performance of pulmonary function tests, Dr. Curseen was of the opinion that plaintiff has asbestosis. He classified plaintiff as having a Class 3 Level of AMA Respiratory Impairment.

9. Dr. James C. Johnson of Piedmont Radiology in Salisbury, a radiologist and B-reader, interpreted a CT scan and chest x-ray dated 16 September 1997. It was Dr. Johnson's opinion that plaintiff has pleural plaque and interstitial changes which would be consistent with asbestos exposure and possible asbestosis given appropriate exposure history and clinical findings.

10. A follow up CT scan and chest x-ray were performed on 26 August 1999, and were interpreted by Dr. Fred Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader. Dr. Dula reported that the findings were stable since the prior study and were consistent with mild asbestosis.

11. Dr. L.C. Rao, a NIOSH B-reader at Pulmonary Medicine Associates, reviewed the chest x-ray dated 16 September 1997. Dr. Rao reported irregular opacities present in the lower and middle lung zones bilaterally and diaphragmatic pleural plaques and circumscribed chest wall pleural thickening bilaterally. It was Dr. Rao's conclusion that with a significant exposure history to asbestos dust, these finding are consistent with the diagnoses of bilateral interstitial fibrosis due to asbestosis, asbestos associated pleural fibrosis bilaterally and diaphragmatic plaques bilaterally.

12. Dr. Richard C. Bernstein, a B-reader at Pulmonary Critical Care Medicine, reviewed the chest x-ray and CT scan dated 26 August 1999. He reported parenchymal and pleural abnormalities consistent with pneumoconiosis on the chest x-ray. On the CT scan, Dr. Bernstein reported increased interstitial markings throughout both lung fields and asbestos related pleural plaques present.

13. Dr. John Wu, a B-reader, reviewed the chest x-ray dated 16 September 1997. He reported parenchymal and pleural abnormalities consistent with pneumoconiosis.

14. Dr. George L. Grauel, a B-reader, reviewed the chest x-ray dated 26 August 1999, and identified within the mid and lower lung zones a fine to medium irregular opacity pattern. Dr. Grauel noted that the opacities may be associated with an underlying pneumoconiosis. Furthermore, he identified "en profile pleural plaque" along both lateral chest walls.

15. James A. Merchant, M.D., Ph.D., B-reader and Dean of the University of Iowa, reviewed the chest x-ray dated 26 August 1999. He reported pleural and parenchymal abnormalities consistent with pneumoconiosis in the lower lung zones.

16. Dr. Phillip Lucas, a NIOSH B-reader and radiologist, also reviewed the chest x-ray dated 26 August 1999. It is Dr. Lucas' opinion that there are "bilateral pleural and interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate exposure history and latent period."

17. Dr. Caroline Chiles, a NIOSH B-reader and Professor of Radiology at Wake Forest School of Medicine, reviewed the CT scan dated 26 August 1999. She reported multiple non-calcified pleural plaques seen bilaterally consistent with asbestos exposure and minimal fibrosis in the lower lungs which may represent asbestosis in the appropriate clinical setting.

18. Dr. Michael DiMeo, a panel physician, examined plaintiff on 19 October 1998 at the request of the North Carolina Industrial Commission. Dr. DiMeo concluded that plaintiff has had significant asbestos exposure, but was uncertain in his report whether or not there has been significant injury from the asbestos exposure. He recommends that a repeat CT scan be done in order to document the progression of pleural thickening and other asbestos related findings.

19. Subsequent to Dr. DiMeo's report, plaintiff had a repeat CT scan performed at Rowan Regional Medical Center which was interpreted by both Dr. Dula and Dr. Chiles as consistent with asbestos exposure and asbestosis.

20. It was the testimony of Dr. Allen Hayes that the preponderance of the evidence by the B-readers is that plaintiff may well have some parenchymal evidence that would be consistent with asbestosis and that he cannot exclude the possibility of parenchymal abnormalities based on his review of the 1997 CT scan.

21. Based on the greater weight of the evidence, plaintiff suffers from asbestos related pleural disease and asbestosis as a result of many years of exposure to the hazards of asbestos dust throughout his period of employment with defendant from 26 November 1951 to 2 August 1998. Defendant has not admitted that plaintiff suffers from asbestosis. Defendant has offered no evidence to refute the findings of the doctors discussed herein. The equivocal medical reports of Dr DiMeo and Dr. Hayes do not provide sufficient grounds to support defendant's failure to admit asbestosis in this case. Plaintiff's 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, medical monitoring is reasonably necessary due to his increased risk of developing lung and other asbestos related cancers.

22. Although plaintiff had retired from employment at the time the Deputy Commissioner's 21 November 2000 Order of Removal was issued, plaintiff was employed by defendant on 9 December 1997, the date he was diagnosed with asbestosis. There is insufficient evidence at this time to determine whether plaintiff's decision to retire was based upon his own desire to remove himself from further exposure to asbestos or whether plaintiff intends to continue to work after retirement. No lay testimony was taken in this case. However, based upon the evidence of record and the Commission's finding that plaintiff has asbestosis as a result of his exposure to the hazards of asbestos throughout his employment with defendant and the removal statutes purpose of removing workers from future employment where further asbestos exposure might occur, the Full Commission is required to issue an Order of Removal for plaintiff, pursuant to N.C. Gen. Stat. § 97-61.5.

23. Plaintiff's average weekly wage was sufficient to entitle him to the maximum workers' compensation rate of $532.00 for 1998, the year of his retirement.

24. The provisions of N.C. Gen. Stat. § 97-60 et seq. are not unconstitutional.

25. Plaintiff seeks attorney's fees from defendant in this case on the grounds that defendant defended this claim without reasonable ground. This issue should be reserved for subsequent determination at the final hearing in this matter.

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

CONCLUSIONS OF LAW 1. 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 from 26 November 1951 to 2 August 1998, for as much as 30 working days or parts thereof, within seven consecutive months, which exposure proximately augmented his asbestosis. N.C. Gen. Stat. § 97-57; Clark v. ITT Grinnell Industrial Piping, Inc.,141 N.C. App. 417, 539 S.E.2d 369 (2000); Haynes v. Feldspar ProducingCo., 222 N.C. 163, 22 S.E.2d 275 (1942); Barber v. Babcock WilcoxConstruction 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." In the instant case, the Commission has found and concluded that plaintiff has contracted asbestosis and asbestos related pleural disease as a result of his employment with defendant; and, that he was last injuriously exposed to asbestos during his employment with defendant and that the exposure was for 30 working days within a seven month period; and that should plaintiff be awarded compensation, an Order of Removal is appropriate to protect plaintiff from further exposure. Accordingly, the Commission hereby issues an Order of Removal. Id.

4. While it has been determined that a retiree who retired prior to receiving a diagnosis of asbestosis 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 did not retire until approximately eight months after being diagnosed with asbestosis. It is not clear from the evidence whether plaintiff's decision to retire was based on his asbestosis and asbestosis related pleural disease, or what plaintiff's plans are. It is clear that plaintiff constructively removed himself in fact from further exposure to the hazards of asbestos when he retired after being diagnosed with asbestosis. 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 or returns to work avoids any future exposure. See Roberts v. Southeastern Magnesia and Asbestos 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. . . ." Plaintiff's wages were sufficient to entitle him to the maximum compensation rate permitted under the Act for the year 1998, the year plaintiff retired. Therefore, plaintiff is entitled to 104 weeks of compensation as a result of his diagnosis of asbestosis at the weekly benefit rate of $532.00. N.C. Gen. Stat. § 97-61.5; Robertsv. 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 not unconstitutional.

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, 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. By agreement of the parties, plaintiff is entitled to recover a penalty of 5% of any compensation due him exclusive of medical compensation. By further agreement of the parties, defendant shall be subjected to a late penalty pursuant to N.C. Gen. Stat. § 97-18.

10. Plaintiff's claim for attorney's fees from defendant on the ground that defendant unreasonably defended this claim pursuant to N.C. Gen. Stat. § 97-88.1 is hereby held in abeyance until the final award is issued in this claim.

11. This claim must be 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 shall be addressed at a subsequent hearing before a deputy commissioner.

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

*********** Based on the foregoing findings of fact and conclusions of law, the Full Commission makes the following:

AWARD 1. 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, at a weekly rate of $532.00. Said sum shall be paid in a lump sum to plaintiff without commutation subject to an award of attorney's fee.

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 to any future weekly compensation or other compensation due, defendant shall increase the amount of such weekly compensation and/or lump sum compensation awarded, by 5%. As per agreement of the parties, defendant shall be subjected to a late penalty pursuant to N.C. Gen. Stat. § 97-18.

3. 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.

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

5. 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 his counsel.

6. Defendant shall pay the costs of this proceeding.

*********** ORDER REMANDING This 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 shall be addressed at the hearing before a deputy commissioner.

This the ___ day of January, 2003.

S/____________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

DISSENTING:

S/_______________ DIANNE C. SELLERS COMMISSIONER

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Dissenting Opinion

I agree with the majority's statement that a person who retires prior to the diagnosis of asbestosis is not entitled to benefits pursuant to § 97-61.5(b). See Austin v. Continental General Tire,141 N.C. App. 397, 540 S.E.2d 824 (2000) (J. Greene, dissenting),reversed and adopting dissenting opinion, 354 N.C. 344, 553 S.E.2d 680 (2001); Abernathy v. Sandoz Chemicals, 151 N.C. App. 252, 565 S.E.2d 218,review denied, 356 N.C. 432, 572 S.E.2d 421 (2002). I disagree with the majority's failure to apply this principal and the award of 104 weeks of benefits pursuant to § 97-61.5(b). The prerequisites for an order of removal under § 97-61.5(b) are:

Diagnosis of asbestosis or silicosis; and

Current employment that exposes plaintiff to the hazards of asbestosis or silicosis.

N.C. Gen. Stat. § 97-61.5(b); see Austin, supra; Abernathy, supra. The award of 104 weeks requires that plaintiff additionally prove a third element:

That the employee is removed from the industry at the directive of the Commission.

Moore v. Standard Mineral Company, 122 N.C. App. 375, 469 S.E.2d 594 (1996); Clark v. ITT Grinnell, 141 N.C. App. 417, 539 S.E.2d 369,remanded for reconsideration in accordance with Austin, 354 N.C. 572,558 S.E.2d 867 (2002); N.C. Gen. Stat. § 97-61.5(b). Because plaintiff has failed to establish each of the three requirements, §97-61.5(b) benefits should not be awarded in this case.

DIAGNOSIS OF ASBESTOSIS I disagree with the majority's conclusion that plaintiff has asbestosis. "Asbestosis" is statutorily defined as "characteristic fibrotic condition of the lungs caused by the inhalation of asbestos dust." N.C. Gen. Stat. § 97-62. Moreover, asbestosis is a medical condition that is to be determined by current, medically accepted standards of diagnosis. The medically accepted standards for the diagnosis of asbestosis are contained in The Diagnosis of NonmalignantDiseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). The North Carolina Workers' Compensation Act places the burden on the plaintiff to establish that his claim is compensable by a preponderance of the competent evidence. In a similar fashion the medical standards for a differential diagnosis require that the physician have all available medical evidence necessary to make the diagnosis and that the doctor consider and be able to preclude other potential causes for the disease or condition. See Westberry v. Gislaved Gummi, 178 F.3d 257 (4th Cir. 1999).

The American Thoracic Society has determined that the diagnosis of "asbestosis" is a judgment based on a careful consideration of all relevant clinical findings. The Diagnosis of Nonmalignant DiseasesRelated to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). According to the American Thoracic Society, the diagnosis of asbestosis requires:

A reliable history of exposure, and

An appropriate time interval between exposure and detection, with¹

Chest roentgenographic evidence of type "s," "t," "u," small irregular opacifications of a profusion of 1/1 or greater,

A restrictive pattern of lung impairment with a forced vital capacity below lower limit of normal,

A diffusing capacity below the lower limit of normal, and/or

Bilateral late or pan inspiratory crackles at the posterior lung bases not cleared by cough.

The American Thoracic Society (ATS) acknowledged that interstitial fibrosis may be present without any of the other criteria, however, the ATS stated that a clinical diagnosis could not be made without the other criteria. Id.

Applying the medically accepted standards, plaintiff does not have asbestosis. James C. Johnson, M.D., Dr. Woo, and Phillip H. Lucas, M.D., read the September 16, 1997 x-ray to reveal an 1/0 profusion. Dr. Darcy accepted the 1/0 profusion level as accurate. Caroline Childs, M.D., read plaintiff's August 26, 1999 x-ray to reveal a 0/1 profusion level and Dr. Dula read this study to reveal an 1/0 profusion. These readings are below the 1/1 threshold adopted by the American Thoracic Society. Similarly, Dr. Dula reported that an August 1999 CT Scan showed no interstitial changes, although there was evidence of asbestos exposure. Dr. Childs interpreted a 1999 CT Scan to reveal evidence of interstitial changes, however, on the same day found that his B-read revealed only a 0/1 profusion level. A radiographic finding "consistent with asbestosis" would give reason to consider this potential diagnosis, however, it is not relevant evidence² that establishes that plaintiff more likely than not has asbestosis. See Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003) ("could or might" evidence not sufficient, standard is reasonable degree of medical certainty); Rutledge v. Tultex Corp., 308 N.C. 85,301 S.E.2d 359 (1983) (prima facie case requires evidence that it is reasonably probable that a particular cause will cause a particular effect); Swink v. Cone Mills, 65 N.C. App. 397, 309 S.E.2d 271 (1983) (mere possibility does not satisfy requisite standard). A physician's subjective opinion that is not supported by the required medical testing is not competent evidence of diagnosis. See Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003) ("could or might" evidence not sufficient, standard is reasonable degree of medical certainty); Young v. HickoryBusiness Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); Rutledge v. Tultex Corp., 308 N.C. 85,301 S.E.2d 359 (1983) (prima facie case requires evidence that it is reasonably probable that a particular cause will cause a particular effect); Swink v. Cone Mills, 65 N.C. App. 397, 309 S.E.2d 271 (1983) (mere possibility does not satisfy requisite standard); Smith v. BeasleyEnterprises, 577 S.E.2d 902 (2002) (Industrial Commission must determine whether evidence is competent and weigh the competent evidence). The evidence, from expert witnesses selected by plaintiff, fails to meet the medically accepted American Thoracic Society standard for diagnosis.

Moreover, plaintiff was examined by Michael J. DiMeo, M.D., at the request of the Commission. Dr. DiMeo, a board certified pulmonologist, practices in the appropriate field to render a diagnosis of asbestosis. Dr. DiMeo personally reviewed radiology studies on plaintiff, requested that further x-rays, including a CT Scan be performed, and based on a review of the medical evidence concluded that plaintiff has not met the requirements for the diagnosis of "asbestosis" under the American Thoracic Society standards. Inappropriately, the majority have declined to review the competency of the opinion testimony and have suggested that Dr. DiMeo's opinion is "equivocal." However, the issue before the Commission is not whether plaintiff has evidence of exposure to asbestos. Rather, the question is whether plaintiff has a valid diagnosis of "asbestosis." Our obligation is to review all of the admitted evidence, determine whether the evidence is competent, and apply the relevant standards to determine the relevant issues. See Smith v. BeasleyEnterprises, 577 S.E.2d 902 (2002) (Industrial Commission must determine whether evidence is competent and weigh the competent evidence). The competent evidence does not allow the Commission to find that plaintiff has a medically accepted diagnosis of asbestosis.

The majority has failed to find facts that support a valid diagnosis of asbestos under the medically accepted ATS standard. First, the majority finds that plaintiff has asbestosis based on the opinion of Dr. Darcy. A review of his medical records, however, indicates that Dr. Darcy's opinion is predicated on a 1/0 profusion rating, which is below the minimum 1/1 threshold required by the American Thoracic Society. Thus, Dr. Darcy's opinion is not based on competent medical evidence sufficient to render a valid diagnosis. Further, the majority cites other opinions, principally radiology interpretations, that plaintiff condition is "consistent with" asbestosis. The issue, however, is the medical findings are "diagnostic of" asbestosis, not merely whether they are "consistent with" asbestosis. The doctors relied upon by the majority express that radiology exhibiting a 1/0 or 0/1 profusion level is "consistent with" asbestosis, when these findings are not sufficient to diagnose asbestosis under the relevant ATS standard.

I, therefore, respectfully dissent because the "evidence" the majority has chosen to rely upon is not competent and relevant to the issues presented in this case. Smith v. Beasley Enterprises, 577 S.E.2d 902 (2002) (Industrial Commission must determine whether evidence is competent and weigh the competent evidence); see Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003) ("could or might" evidence not sufficient, standard is reasonable degree of medical certainty); Youngv. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); Rutledge v. Tultex Corp.,308 N.C. 85, 301 S.E.2d 359 (1983) (prima facie case requires evidence that it is reasonably probable that a particular cause will cause a particular effect); Swink v. Cone Mills, 65 N.C. App. 397, 309 S.E.2d 271 (1983) (mere possibility does not satisfy requisite standard). Plaintiff has not established by competent evidence that he has asbestosis.

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

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

[Emphasis added] Plaintiff has not met the second condition, and indeed has presented no evidence to prove that his occupation currently "exposes him to the hazards of asbestosis." Moreover, the evidence is that plaintiff retired from his employment with defendant on 2 August 1998. No reason for his retirement is presented in the evidence. Thus, plaintiff has not established that he is entitled to an order of removal. Further, only an appropriate order of removal, that actually removes plaintiff from his employment in the industry, triggers the payment of 104 weeks of benefits. See Clark v. ITT Grinnell, 141 N.C. App. 417, 539 S.E.2d 369,remanded for reconsideration, 354 N.C. 572, 558 S.E.2d 867 (2002);Austin, 141 N.C. App. at 415; Moore, supra (removal from industry by directive of Commission); N.C. GEN. STAT. § 97-61.5(b) (if employee is removed from industry).

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

Plaintiff has 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 lay testimony was offered in this case. The parties did stipulate, however, that plaintiff retired on August 2, 1998. Thus, there is no evidence that plaintiff is currently employed with defendant, let alone that the employment is currently hazardous. The majority finds in Finding of Fact No. 5, "[p]laintiff was continuously exposed to asbestos containing materials on a regular basis for more than thirty working days or parts thereof inside of seven consecutive months from 1951 to the date of his retirement on 2 August 1998." However, there is no evidence, stipulation, or reasonable inference to support the finding that plaintiff is currently, hazardously exposed to asbestos in employment with defendant, let alone when he last worked in August 1998. The majority correctly finds in Finding of Fact No. 1 that plaintiff was last employed on August 2, 1998. The parties also stipulated that plaintiff was last injuriously exposed (30 work days inside of seven consecutive months) to asbestos while employed by defendant. This finding and stipulation taken together, however, do not support the majority's finding and conclusion that plaintiff was hazardously exposed throughout his employment, or more significantly, at the present time is hazardously exposed in his employment with by defendant. The stipulation does not define when during the forty-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 under § 97-61.5(b).

PLAINTIFF'S § 97-57 ARGUMENT IS MISPLACED Rather 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,³ 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 thirty 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 WORK Plaintiff has argued illogically that he is entitled to an order of removal because his employment⁴ involves a hazardous exposure to asbestos. The evidence, however, is undisputed that plaintiff is notcurrently employed with defendant, or anyone else; therefore, there is no foundation to order his removal. If plaintiff is currently hazardously exposed to asbestos, and has a valid diagnosis of asbestosis, 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.; see Austin,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; N.C. GEN STAT. § 07-61.5(b).

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, 151N.C. App. 252, 565 S.E.2d 218, review denied, 356 N.C. 432, 572 S.E.2d 421 (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 notcurrently 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 (such as the instant case), as well as those who are currently employed in positions where there is no evidence of current exposure to the hazards of asbestos, 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.⁵

Plaintiff further argues that he should be entitled to § 97-61.5(b) benefits because he retired in 1998 after his 1997 diagnosis of asbestosis. The reason for plaintiff's retirement, and more importantly whether it was because of this illness, however, is not in evidence.⁶ Also, plaintiff has not requested to reopen the record or otherwise provide the Full Commission with evidence as to the reason for his retirement. Moreover, plaintiff's first panel examination did not occur until October 19, 1998, after he had already retired from his employment. Section 97-61.5(b) specifically addresses removal after the first panel examination, and the evidence is undisputed that plaintiff retired before this examination; therefore, the removal provision of § 97-61.5(b) is not applicable to this case. See Austin,540 S.E.2d at 835 ("An employee who is no longer employed in a position that causes harmful exposure need not be `removed' from his employment."); Clark, 539 S.E.2d at 376 (removal from hazardous industry by directive of Commission).

Although plaintiff correctly notes that the plaintiffs in Abernathy andAustin retired before they were diagnosed with asbestos, this distinction should not cause a different result to occur.⁷ First, this argument ignores that portion of Judge Greene's opinion wherein he stated:

"Sections 97-61.1 through 61.7 were enacted `to encourage employees to remove themselves from hazardous exposure to asbestos and to provide for employee rehabilitation.' [Citation omitted] An employee who is no longer employed in a position that causes harmful exposure need not be `removed' from his employment."

Austin, 540 S.E.2d at 835 [Emphasis added]. Moreover, the statutory mandate is for the Commission to determine "removal" and the award of 104 weeks of benefits at the "first hearing" after the panel examination. N.C. GEN. STAT. § 97-61.5. If plaintiff, as in this case, is not employed in a position that causes harmful exposure at the time the Full Commission hold the "hearing after first [panel] examination" the removal and benefit provisions of § 97-61.5(b) are not applicable. SeeAbernathy, 565 S.E.2d at 257; Austin, 540 S.E.2d at 835-36; N.C. GEN. STAT. § 97-61.5. The benefits are for removal from "hazardous industry by a directive of the Commission." Clark, 539 S.E.2d at 376,citing, Moore, 469 S.E.2d at 596.

Saliently, I believe that plaintiff has failed to satisfy the requirements for removal from hazardous employment, and the award of 104 weeks of benefits, for at least five reasons: (1) plaintiff does not have asbestosis; (2) plaintiff is not employed; (3) plaintiff has failed to establish that his employment presents a current hazard; (4) there is no evidence before the Commission that plaintiff's retirement was because of his disease; and (5) plaintiff was not removed from his employment at the directive of the Commission. Therefore, I find that plaintiff has not established entitlement to § 97-61.5(b) benefits.

INSUFFICIENT ORDER OF REMOVAL To trigger the award of 104 weeks of benefits the order of removal must cause plaintiff to be removed from the industry. In Moore, the court stated:

"the language regarding `removal from the industry' has specific application only to occasions when identified victims of occupational disease are thereafter `removed' from a hazardous industry by directive of the Commission."

Clark, 539 S.E.2d at 376, citing, Moore, 469 S.E.2d at 596. The majority's order of removal ignores the statutory mandate that plaintiff is to be actually removed from his employment with defendant.⁸ At best, this order of removal appears to be a legal nullity because there is no evidence that plaintiff is employed at all, let alone in an occupation that further exposes him to the hazards of asbestos. Moreover, since the majority's order of "removal" does not, and did not, in fact, remove plaintiff from his employment, let alone the industry, as plaintiff left employment before the directive of the Commission, the order of removal does not trigger the award of 104 weeks of benefits.Moore, 469 S.E.2d at 596; Austin, 141 N.C. App. at 415; Abernathy,supra; N.C. GEN. STAT. § 97-61.5(b).

104 WEEKS NOT APPROPRIATE COMPENSATION FOR PLAINTIFF Plaintiff also suggests that in order to provide compensation within the intent of the Act, the award of 104 weeks is necessary. 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 (assuming that they have a valid diagnosis)⁹ 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 decisions¹⁰ have questioned appropriate compensation for employees who are not entitled to removal, the Court, in Clark, 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.

The majority inappropriately cites Honeycutt v. Carolina Asbestos Co.,235 N.C. 471, 70 S.E.2d 426 (1952), for the proposition that the 104 weeks of compensation has the additional purpose to compensate the employee for the incurable nature of the disease. This finding arises from plaintiff's suggestion 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,¹¹ 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. SeeAustin, 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, which adopted the dissent of Judge Greene rather than the majority opinion of the Court of Appeals.

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.

Moreover, the majority's citation to Honeycutt is not appropriate.Honeycutt is not a § 97-61.5(b) case and predates the enactment of this provision. Thus, the Supreme Court in Honeycutt did not award §97-61.5(b) benefits, or otherwise discuss § 97-61.5(b), an order of removal, the award of 104 weeks of benefits, the payment of benefits while continuing in current employment, or the payment of 104 weeks of benefits for the incurable nature of the disease. Rather, Honeycutt supports the proposition that an employee with asbestosis is entitled to recover compensation under the general provisions of the Act (i.e.: §§ 97-29, -30, -31) as expressed in § 97-61.

In Comstock v. Weyerhaeuser Company, I.C. No. 931412, filed on February 3, 2003, the same Commissioners composing the majority in this case, denied plaintiff's claim for § 97-61.5(b) benefits because "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)." [COL 4 in I.C. No. 931412.] The same majority has also denied the 104 weeks of benefits to retirees in I.C. File No. 002991, Davenport v. Weyerhaeuser. The circumstances are no different in this case, and thereby, the results should be the same.

§ 97-88.1 ATTORNEY'S FEES Finally, one member of the majority¹² has entered a single Commissioner Order finding that plaintiff's claim for attorney's fees for unfounded litigiousness pursuant to § 97-88.1 "should be reserved for a subsequent determination at the final hearing" or "held in abeyance." If a ruling on this issue cannot be made at this time, then clearly there are and will be no grounds to assess attorney's fees. If it cannot be determined that the defense is unreasonable, then in fact the defense is patently reasonable as reasonableness is not determined in hindsight. Further, as noted above, this case includes numerous legal issues on which the parties, including defendant, have a right to a ruling by the Commission and subsequently by the Courts. Thus, plaintiff's claim for attorney's fees pursuant to § 97-88.1 must be denied. See Shaw v.United Parcel Service, 116 N.C. App. 598, 449 S.E.2d 50 (1994), aff'd perCuriam, 342 N.C. 189, 463 S.E.2d 78 (1995).

BENEFITS ARE WEEKLY The 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 third panel examination. Further, there would be no need for § 97-61.6 to address the payment of "remaining portion of the 104 weeks specified in G.S. § 97-61.5" if these benefits were intended to be paid in a lump sum. Thus, § 97-61.5(b) appropriately provides for "weekly compensation," rather than payment of benefits in a lump sum.

CONCLUSION For 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 The American Thoracic Society expressed that "[I]t is possible that interstitial fibrosis may be present even though none of these criteria [referring to items 3-6, above] are satisfied, but in our opinion, in these circumstances the clinical diagnosis cannot be made." Thus, a proper diagnosis, absent pathologic examination, requires proof of the first two criteria and at least 1 of the remaining criteria. TheDiagnosis of Nonmalignant Diseases Related to Asbestos, 134 AmericanReview of Respiratory Disease 363 (Adopted by American Lung Association, March 1986).

² Under Rule 401 of the North Carolina Rules of Evidence, "relevant evidence" is defined as evidence that tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In order word, relevant evidence tends to establish that a contested fact is more, or less, likely.

³ 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."

⁴ As explained above, and as found in the majority's Finding of Fact Nos. 1 plaintiff retired in August 1998. Thus, there is no "employment" from which to remove plaintiff at the time of the "hearing after first examination" to trigger the potential application of § 97-61.5(b). "An employee who is no longer employed in a position that causes [allegedly] harmful exposure need not be `removed' from his employment."Austin, 141 N.C. App. at 415, 540 S.E.2d at 835.

⁵ 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 pursuant to N.C. Gen. Stat. § 97-61.5(b) the Deputy Commissioner 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 pursuant to N.C. Gen. Stat. § 97-61.5(b)" and does not otherwise abrogate the requirements of the Commission to comply with § 97-61.5(b) of the Act.

⁶ Even the majority finds that "[t]here is insufficient evidence at this time to determine whether plaintiff's decision to retire was based on his own desire to remove himself from further exposure to asbestos"See Finding of Fact No. 22. Plaintiff did not testify at the deputy commissioner hearing and his medical records indicate that he was 65 years of age at the time of his retirement.

⁷ In Abernathy, the Court of Appeals correctly quoted Judge Greene's opinion in Austin to hold that:

"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."

See Abernathy, 565 S.E.2d at 257, quoting, Austin,540 S.E.2d at 835.

⁸ The prerequisites for the order of removal are:

diagnosis of asbestosis or silicosis; and, current employment that exposes plaintiff to the hazards of asbestosis or silicosis.

N.C. GEN. STAT. § 97-61.5(b). The award of 104 weeks of benefits requires that plaintiff additionally prove a third element:

that the employee is removed from the industry at the directive of the Commission.

Id.; Moore, 469 S.E.2d at 596; Clark, 539 S.E.2d at 376.

⁹ As discussed, infra, plaintiff does not have a valid diagnosis of asbestosis.

¹⁰ Even, Judge Greene, in Austin, wrote:

"I acknowledge the `removal' requirement of section 97-61.5(b) raises concerns regarding whether an employee who chooses to remove himself from employment prior to diagnosis of asbestos 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, 540 S.E.2d at 836. This inquiry, however, does not remove the requirement that the removal from hazardous employment must occur at the "directive of the Commission." Moore, 569 S.E.2d at 596.

¹¹ 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 also inappropriately relies on Honeycutt v. Carolina AsbestosCo., 235 N.C. 471, 70 S.E.2d 426 (1952). Honeycutt is not a §97-61.5(b) case, and predates the current statutory provisions. InHoneycutt, 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. There is no mention of an order of removal or 104 weeks in this case. 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).

¹² This case is pending before a three member panel of the Commission. A single-member order is not an Order of the Full Commission.