Jones v. Beaunit Corp. , 72 N.C. App. 351 ( 1985 )

324 S.E.2d 624 (1985)

Harvey J. JONES, Employee, Plaintiff,
v.
BEAUNIT CORPORATION, Employer, Commercial Union Assurance Company and/or Liberty Mutual Insurance Company Carriers, Defendants.

No. 8310IC765.

Court of Appeals of North Carolina.

January 15, 1985.

Hassell & Hudson by Charles R. Hassell, Jr., and Robin E. Hudson, Raleigh, for plaintiff-appellee.

Young, Moore, Henderson & Alvis, P.A. by B.T. Henderson, II, and Joseph W. Williford, Raleigh, for defendants-appellants Beaunit Corp. and Commercial Union Assur. Co.

Mason, Williamson, Etheridge & Moser, P.A. by James W. Mason, Laurinburg, for defendants-appellants Beaunit Corp. and Liberty Mut. Ins. Co.

WHICHARD, Judge.

On 19 June 1984 this Court filed an unpublished opinion remanding this case to the Industrial Commission for express determination of defendants' oral motion which pled the provisions of G.S. 97-58 in bar of this claim. 69 N.C.App. 177, 317 S.E.2d 441. We noted that the motion raised a jurisdictional question, the two year time limit for filing claims under G.S. 97-58(c) being a condition precedent to jurisdiction of the Industrial Commission to hear the claim. Poythress v. J.P. Stevens, 54 N.C.App. 376, 382, 283 S.E.2d 573, 577 (1981), disc. rev. denied, 305 N.C. 153, 289 S.E.2d 380 (1982). We further noted that the record appeared incomplete at the point containing portions of the evidence determinative of this issue; for that reason, the Commission was authorized to receive additional evidence upon remand to enable it to pass upon the motion.

The addendum to the record on appeal contains no additional evidence offered on remand. The Commission unanimously found upon remand "that there is insufficient competent evidence of record to show the claimant was informed clearly, simply, and directly by competent medical authority that he has an occupational disease and that his illness is work-related." See Lawson v. Cone Mills Corp., 68 N.C.App. 402, 410, 315 S.E.2d 103, 107 (1984) (articulating standard for informing claimant). We sustain the finding. We could not ascertain from the original record that claimant had been informed of his disease so as to raise the jurisdictional bar of G.S. 97-58(c), and the addendum to the record provides no additional evidence for our consideration.

We thus find no merit to defendants' arguments that the claim is time-barred under G.S. 97-58(c). We further find defendants' remaining arguments without merit, and we uphold the award.

Defendant Liberty Mutual cross assigns error to the assessment of liability against it, contending that plaintiff was last injuriously exposed while defendant Commercial Union was the carrier responsible for the risk. We agree. The Commission found, without exception, that plaintiff worked for defendant-employer from 23 September 1963 to 3 May 1971. The parties stipulated that defendant Liberty Mutual was the carrier on the risk until 31 March 1968 and that defendant Commercial Union was the carrier on the risk from 1 April 1968 until the termination of plaintiff's employment with defendant-employer. The employer in whose employment the employee was last injuriously exposed to the hazards of the occupational disease and the carrier on the risk when the employee was so last exposed are the parties liable for payment of compensation. G.S. 97-57. Defendant Commercial Union was the insurance carrier on the risk when plaintiff was last injuriously exposed to the hazards of chronic obstructive pulmonary disease and byssinosis.

The Commission concluded that plaintiff "was last injuriously exposed ... in his employment with defendant-employer while defendant-insurers were on the risk." On the basis of this conclusion it held defendant carriers jointly liable. Our Supreme Court has stated, however, that "the law makes no provision for a partnership in responsibility...." Haynes v. Feldspar Producing Co., 222 N.C. 163, 170, 22 S.E.2d 275, 279 (1942).

Haynes presented the question whether, while in the employment of defendant company, plaintiff was injuriously exposed to conditions augmenting the occupational disease he had already contracted. Id. at 168, 22 S.E.2d at 278. The court found that because the same causes which originally gave rise to the disease were present in defendant's company, "last injuriously exposed" as used in G.S. 97-57 "meant an exposure which proximately augmented the disease to any extent, however slight." Id. at 166, 22 S.E.2d at 277. The court wrote:

Perhaps on a comparative basis, the chief responsibility for plaintiff's condition morally rests upon his [employer of longer duration and the one in whose employ he contracted the disease]; but not the legal liability. It must have been fully understood by those who wrote the law fixing the responsibility on the employer in whose service the last injurious exposure took place, that situations like this must inevitably arise, but the law makes no provision for a partnership in responsibility, has nothing to say as to the length of the later employment or the degree of injury which the deleterious exposure must inflict to merit compensation. It takes the breakdown practically where it occurs—with the last injurious exposure.

Id. at 170, 22 S.E.2d at 279 (cited as the correct legal standard in Rutledge v. Tultex Corp., 308 N.C. 85, 90, 301 S.E.2d 359, 363 (1983)).

We find Haynes to be controlling. Whether there are two companies and, presumably, two insurance carriers as in Haynes, or one company and two insurance carriers as here, the carrier on the risk when the employee is last injuriously exposed is the liable party. G.S. 97-57.

Under a Haynes analysis, 222 N.C. at 169-70, 22 S.E.2d at 278-79, defendant Liberty Mutual would be the liable carrier only if plaintiff's occupational disease had reached the point of saturation at the time defendant Commercial Union assumed the risk. The evidence indicates this was not the case. The Commission found as a fact that plaintiff was employed by defendant employer until he was no longer able to work due to his breathing problem. The Commission further found that plaintiff was exposed to dust and fumes from the machine he operated and from the adjacent room. Plaintiff thus worked at the same company under the same deleterious conditions for the duration of his employment. On the basis of this evidence we conclude that plaintiff's last injurious exposure to the hazards which augmented his occupational disease was after responsibility for the risk shifted from defendant Liberty Mutual to defendant Commercial Union. Defendant Commercial Union is thus liable for payment of compensation.

Affirmed in part, reversed in part.

WEBB and HILL^[1], JJ. concur.

NOTES

[1] Judge Hill concurred in this opinion prior to his retirement on 31 December 1984.