Roberts v. Southeastern Magnesia & Asbestos Co. , 61 N.C. App. 706 ( 1983 )

301 S.E.2d 742 (1983)

Arthur C. ROBERTS, Jr., Employee, Plaintiff,
v.
SOUTHEASTERN MAGNESIA AND ASBESTOS COMPANY, Employer, Great American Insurance Company, Carrier, Defendants.

No. 8210IC333.

Court of Appeals of North Carolina.

April 19, 1983.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Philip R. Hedrick and Mel J. Garofalo, Charlotte, for plaintiff-appellee.

Teague, Campbell, Conely & Dennis by Richard B. Conely, Raleigh, for defendants-appellants.

EAGLES, Judge.

Defendants first challenge the Industrial Commission's findings of fact that plaintiff's exposure to asbestos after 20 September 1976 augmented his disease and that plaintiff's last injurious exposure to asbestos was between 20 September 1976 and 17 July 1978. If the Commission's findings of fact are supported by competent evidence they may not be disturbed on appeal. Hollman v. City of Raleigh, 273 N.C. 240, 159 S.E.2d 874 (1968); 8 N.C. Index 3d, Master and Servant § 96. Since these findings of fact were supported by competent evidence presented at the hearing, we find defendants' first assignment of error to be without merit.

G.S. 97-57 requires that the employee must have been exposed to the hazards of asbestosis "for as much as 30 working days, or parts thereof, within seven consecutive calendar months" for such exposure to be deemed injurious. Plaintiff's employer's year-end inventories showed that in 1975 plaintiff's business had, in its warehouse, asbestos products valued at $6,906.24; in 1976, asbestos products valued at $8,658.53; in 1977, asbestos products valued at $10,705.19; in 1978, asbestos products valued at $15,465.65; and in 1979, asbestos products valued at $3,093.01. During this five year period, plaintiff handled and moved asbestos pipe insulation, asbestos paper, asbestos tape, asbestos roll board, asbestos cloth and asbestos mill board on a regular daily basis, five days a week. Plaintiff testified that he was exposed to some asbestos "on any work day." Dr. Hillis L. Seay, who was stipulated as an expert in the field of pulmonary medicine, testified that any exposure to asbestos was "potentially injurious" to plaintiff. We hold that this evidence was sufficient to support both challenged findings of fact.

Defendant next asserts that the facts in this case did not support the Industrial Commission's conclusion of law that

2. Payment of compensation to employees afflicted with asbestosis for 104 weeks pursuant to N.C.G.S. 97-61.5(b) is predicated upon removal from the hazards thereof as opposed to actual incapacity to earn wages and begins upon removal from the hazards thereof as incentive to forced change in occupation, subject to waiver. Session Laws 1935, Chapter 123, Sec. 1; Session Laws 1945, Chapter 762, Sec. 4; Session Laws 1955, Chapter 525, Sec. 1 and 2. N.C.G.S. 97-61.5 is in conflict with the general provisions of N.C. G.S. 97-54 and N.C.G.S. 97-58(a), thereby establishing an exception. Davis v. Granite Corp., 259 N.C. 672, 676, 131 S.E.2d 335 (1963). This exception makes the diagnosis of asbestosis or silicosis the same as disablement. The disease must therefore have developed within two years of the last exposure.

Before the 1981 amendments, G.S. 97-61.5(b) stated that

If the Industrial Commission finds at the first hearing that the employee has either asbestosis or silicosis or if the parties enter into an agreement to the effect that the employee has silicosis or asbestosis, it shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis or silicosis, and if the employee thereafter engages in any occupation which exposes him to the hazards of asbestosis or silicosis without having obtained the written approval of the Industrial Commission as provided in G.S. 97-61.7, neither he, his dependents, personal representative nor any other person shall be entitled to any compensation for disablement or death resulting from asbestosis or silicosis; provided, that if the employee is removed from the industry the employer shall pay or cause to be paid as in this subsection provided to the employee affected by such asbestosis or silicosis a weekly compensation equal to sixty-six and two-thirds percent (662/3%) of his average weekly wages before removal from the industry, but not more than eighty dollars ($80.00) or less than twenty dollars ($20.00) a week, which compensation shall continue for a period of 104 weeks. Payments made under this subsection shall be credited on the amounts payable under any final award in the cause entered under G.S. 97-61.6.

G.S. 97-61.7 provides that

Waiver of right to compensation as alternative to forced change of occupation.—An employee who has been compensated under the terms of G.S. 97-61.5(b) as an alternative to forced change of occupation, may, subject to the approval of the Industrial Commission, waive in writing his right to further compensation for any aggravation of his condition that may result from his continuing in an occupation exposing him to the hazards of asbestosis or silicosis, in which case payment of all compensation awarded previous to the date of the waiver as approved by the Industrial Commission shall bar any further claims by the employee, or anyone claiming through him, provided, that in the event of total disablement or death as a result of asbestosis or silicosis with which the employee was so affected, compensation shall nevertheless be payable, but in no case, whether for disability or death or both, for a longer period than 100 weeks in addition to the 104 weeks already paid. Such written waiver must be filed with the Industrial Commission, and the Commission shall keep a record of each waiver, which record shall be open to the inspection of any interested person.

It is clear from the language of these two statutes that a diagnosis of asbestosis, for purposes of determining eligibility to receive benefits, is the equivalent of a finding of actual disability. See Davis v. Granite Corp., 259 N.C. 672, 131 S.E.2d 335 (1963). We reject defendants' argument that plaintiff may receive disability compensation only upon a showing that he has suffered diminished capacity to earn an income. The Commission's award of 104 weekly payments was proper.

The Commission's award was predicated upon the employee avoiding further exposure to asbestosis in his employment. We recognize that the intent of the Legislature in providing for an automatic 104 installment payments was to encourage employees to remove themselves from hazardous exposure to asbestos and to provide for employee rehabilitation, Honeycutt v. Carolina Asbestos Co., 235 N.C. 471, 70 S.E.2d 426 (1952). We also recognize that G.S. 97-61.5(b) which authorizes this award, has as an additional purpose the compensation of employees for the incurable nature of the disease of asbestosis. See Honeycutt v. Carolina Asbestos Co., supra; Pitman v. L.M. Carpenter & Associates, 247 N.C. 63, 100 S.E.2d 231 (1957). There is no indication that the Legislature intended to prohibit any recovery whatsoever to those employees who refused to remove themselves from contact with asbestos after being diagnosed as having asbestosis. The statutory language merely prohibits recovery for actual partial incapacity if the employee, after receiving the initial compensation in the form of the 104 week installment payments, is shown to have remained in a job where he or she is exposed to asbestos.

In addition to awarding plaintiff compensation for asbestosis, the Commission ordered the plaintiff to refrain from exposing himself to the hazards of asbestos in his employment. The above statutes provide that if plaintiff chose to obey the Commission's order to avoid exposure to the hazards of asbestosis in his employment and later established that his earning capacity was diminished due to the asbestosis, he could recover an additional amount as compensation for that loss of earning capacity. Since one of the purposes of G.S. 97-61.5(b) is "to provide compulsory changes of occupations for those workmen affected by asbestosis..., whose primary need is removal to employments without dust hazards," the Industrial Commission did not err when it ordered plaintiff to abstain from working with asbestos in the future. Young v. Whitehall, 229 N.C. 360, 365, 49 S.E.2d 797, 801 (1948).

For these reasons, we affirm the Industrial Commission's opinion and award of 9 June 1981.

Affirmed.

VAUGHN, C.J., and WEBB, J., concur.