Phelps v. Weyerhaeuser Co.

I disagree with the majority's conclusion that plaintiff has asbestosis and that he is entitled to 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 v. Continental GeneralTire, 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). 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. 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 Nonmalignant DiseasesRelated 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. SeeWestberry 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 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.

Having reviewed the evidence in accordance with the ATS standard, I do not agree that plaintiff has a valid diagnosis of asbestosis. By history, plaintiff appears to satisfy the first two criteria of the ATS standard, which address exposure and latency. As expressed by the ATS standard, however, these two criteria alone are not sufficient to diagnose asbestosis, and this position appears to be reasonable in that not all persons exposed to asbestos dust develop asbestosis. The issue is diagnosis of the disease, not merely whether the employee is or was exposed. Similarly, the issue is whether plaintiff has "asbestosis," not merely whether he has findings that are "consistent with asbestosis." The third criteria addresses radiological evidence of interstitial fibrosis consistent with asbestosis and requires small irregular opacifications of type "s," "t," "u," with a profusion rating of 1/1 or greater. Numerous x-rays are in evidence, however, they do not support the diagnosis of asbestosis² because they fail to establish the required profusion rating of 1/1 or greater. Several pulmonary function studies are in evidence that reveal that plaintiff has normal lung function, without evidence of a restrictive pattern consistent with asbestosis, and with normal diffusion capacity. Thus, the evidence does not support the fourth and fifth criterion. Finally, plaintiff has not consistently demonstrated bilateral late or pan inspiratory crackles in the posterior lung bases, not cleared by cough, as required under the sixth criteria of the ATS standard. Because the evidence does not support the third through sixth criteria of the ATS standard for diagnosis, I cannot agree with the majority's conclusion that plaintiff has asbestosis.

The evidence cited by the majority does not support the conclusion that plaintiff has a valid "diagnosis of asbestosis." For example, the majority cites physician conclusions that plaintiff has conditions that are "consistent with" asbestosis.³ The majority has failed to set forth facts that are in evidence to establish a diagnosis based on the medically accepted standard for diagnosis adopted by the American Thoracic Society. See Young v. Hickory Business Furniture, 353 N.C. 227,538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); Seealso Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible). A radiographic finding "consistent with asbestosis" would give reason to rule out this condition, however, it is not relevant evidence⁴ that establishes that plaintiff more likely than not has asbestosis. See Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003) (expert speculation that condition "could have or might" have been caused, not sufficient to comply with "reasonable degree of medical certainty" standard for admissibility of opinion); Rutledge v. TultexCorp., 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).

The majority has not cited facts, as opposed to bald conclusions, which would support the diagnosis of asbestosis in accordance with the accepted medical standard for diagnosis. In particular, the majority appears to cite the opinion of Dr. Whatley to the effect that plaintiff has asbestosis. A review of Dr. Whatley's report, however, fails to support this conclusion. Saliently, Dr. Whatley reported:

"Mr. Phelps is completely asymptomatic. He does not have any respiratory complaints whatsoever."

PULMONARY FUNCTION TESTING (06/15/99)

Performed at Pitt County Memorial Hospital Pulmonary Diagnostic Lab. No obstruction, no restriction, and normal diffusing capacity for carbon monoxide.

RADIOGRAPHIC STUDIES

Chest radiographs dated 11/08/97 and 07/12/99 show normal heart and lungs. The 07/12/99 chest radiograph comes with a B reading by James Johnson, M.D., which notes small opacites in both lungs and t/t located in the mid and lower lung zones on both sides with a profusion of 1/0. No large opacites or pleural abnormalities are seen.

CT Scan of chest dated 07.12.99 shows normal lung parenchyma. "

A person with a 1/0 profusion rating without pulmonary impairment doesnot meet the requirements for the diagnosis of asbestosis under the medically accepted ATS standard. Further, Dr. Whatley fails to report restriction, loss of diffusion capacity, or crackles. Thus, the physical findings reported by Dr. Whatley, quoted above, do not support a diagnosis of asbestosis.

The fallacy in plaintiff's argument that "consistent with asbestosis" is the diagnosis of asbestosis was explored by plaintiff's counsel in the deposition of Dr. Hayes in discussing Dr. Whatley's use of this phrase:

Q. I interpret it to say and tell me if this last sentence is correct "The occupational exposure to asbestos dust, the long latent period, and the radiographic abnormalities seen on CT scan are consistent with asbestosis." Now, if I say that's a diagnosis and you it's not, that's simply your opinion. Is that correct?

A. No. I think we are reading two different paragraphs and drawing different conclusions. I read the first paragraph under "Impression," and you read me the second paragraph. If I may quote the first paragraph, quote, "Mr. Phelps likely had significant exposure to asbestos dust during his employment at Weyerhaeuser. There may be radiologic evidence of asbestos although there is discrepancy between the findings of the B reading dated 7/12/97 showing parenchymal densities[⁵] and the absence of parenchymal densities seen on a high resolution CT scan dated 10/8/97. Nonetheless, the CT scan of that date shows pleural abnormalities." I looked at the term "may" and actually don't know from this report the confidence level that Dr. Whatley is expressing. He'll have to speak to that himself. I also am not certain that he even had the films or if he simply had the reports.

Q. And I was focusing, I guess, on the section that says "are consistent." And that seems very definite, does it not, as a statement, "they are consistent with asbestosis"?

A. Yes sir. In the second paragraph and I'm happy to quote that for the record, if you want. But you're reading "are consistent with," and I will have to let Dr. Whatley speak for himself in this regard. "Consistent with" and "diagnostic of" are two different things.

Deposition of Dr. Hayes, November 27, 2000, p. 53-54 [emphasis added]. Dr. Hayes, then explained that he observed pleural plaques on the CT scan that he would agree were "consistent with" an asbestos causation in the context of the exposure plaintiff reported to others. Id. at 54-55. However, despite the agreement that plaintiff has findings that are "consistent with" asbestosis, Dr. Hayes did not find that the totality of the medical evidence would support the diagnosis of asbestosis. In like fashion, Dr. Bernstein testified that plaintiff's x-ray with a 1/0 profusion rating was "consistent with" asbestosis, although we know from the ATS standard this reading is not sufficient for the "diagnosis of" asbestosis.

Dr. Darcy also reported that CT scan suggested the presence of pleural plaque consistent with asbestos exposure, however, there was no evidence of interstitial disease. "Asbestosis" consists of fibrosis of the interstitial tissue. Thus, although this finding supports asbestos-related pleural disease, it not only does not support the diagnosis of asbestosis, it negates this diagnosis. Therefore, like Dr. Whatley and Dr. Hayes, Dr. Darcy reports findings "consistent with" asbestos exposure, however, these findings do not approach the ATS requirements to diagnose asbestosis. Dr. Darcy's conclusion concerning the absence of interstitial disease is further confirmed by Dr. Curseen who reports that the high contrast CT Scan revealed "no definite interstitial disease." Thus, the medical findings of Dr. Darcy and Dr. Curseen do not support a diagnosis of asbestosis.

In addition, Dr. Grauel, a certified B-reader, testified that he reviewed an x-ray of Mr. Phelps and found a profusion rating of 1/0 with no evidence of pleural abnormalities. This reading is below the 1/1 level required under the ATS standard and the absence of pleural abnormalities is further evidence that plaintiff's condition is inconsistent with the diagnosis of asbestosis.

Further, Dr. Johnson's records also fail to support the diagnosis of asbestosis. Dr. Johnson's B-read on November 11, 1997, of an x-ray taken on November 8, 1997 was completely negative for any parenchymal abnormalities. Dr. Johnson also failed to see evidence of asbestosis on a high resolution CT scan performed on July 12, 1999, reporting: "I see no definite interstitial or pleural abnormality on today's study." Further, his B-read of a July 12, 1999 x-ray revealed only a 1/0 profusion rating, which is below the 1/1 minimal requirements of the ATS standard. This reading is consistent with other readings of the same x-ray by Dr. Grauel and Dr. Rao.

The issue before the Commission is whether plaintiff has "asbestosis," not merely whether there is evidence that he was exposed to asbestos or has other asbestos-related disease or condition, and not merely whether he has some medical findings that are "consistent with" asbestosis. The Commission has the duty to consider all of the competent evidence, weigh the competent evidence, and explain why greater weight is given to conflicting evidence. See Lineback v. Wake County Board ofCommissioners, 126 N.C. App. 678, 486 S.E.2d 252 (1997); Harrell v.Stevens Co., 45 N.C. App. 197, 205, 262 S.E.2d 830, 835, disc.review denied, 300 N.C. 196, 269 S.E.2d 623 (1980); Jenkins v. EascoAluminum Corp., 142 N.C. App. 71, 541 S.E.2d 510 (2001). The majority herein, however, has provided no reason for discounting the opinion of Dr. Hayes and Dr. Whatley, the Commission selected examining doctor. The intended role of the panel examination physician is to provide the Commission with an unbiased medical examination. Here the majority has improperly chosen to misconstrue and discount Dr. Whatley's findings without weighing his testimony against all of the other medical evidence. Weaver v. American National Can Corp., 123 N.C. App. 507, 510,473 S.E.2d 10, 12 (1996); Harrell v. Stevens Co., 45 N.C. App. 197,205, 262 S.E.2d 830, 835, disc. review denied, 300 N.C. 196, 269 S.E.2d 623 (1980)); Butler v. Dupont, COA01-550 (2002); Moore v. City of Lexington, COA02-223 (2003).

In answering the question before us, i.e., whether plaintiff has asbestosis, it is necessary to look beyond the conclusions of the "experts" and determine whether their opinions are supported by competent and medically accepted evidence. See Smith v. Beasley Enterprises, ___ N.C. App. ___, 577 S.E.2d 902 (2002) (Commission should review witness' testimony to determine that it is competent). Therefore, although the "experts" relied upon by the majority state that plaintiff has pathology "consistent with" asbestosis, the factual bases for their conclusions do not comply with the minimum required medical standards adopted by ATS for the "diagnosis of" asbestosis. The relevant issue is diagnosis, not possibility. The physician's conclusions that are not supported by the relevant criteria under the medically accepted standard are not 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); Young v. Hickory Business Furniture, 353 N.C. 227,538 S.E.2d 912 (2000) (speculation and conjecture is not evidence); Seealso Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible).

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] Although I seriously question whether plaintiff has met the first condition requiring that he establish the diagnosis of asbestosis, 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." 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. ITTGrinnell, 141 N.C. App. 417, 539 S.E.2d 369, remanded forreconsideration, 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 continues to be employed by defendant. There is, however, no evidence that plaintiff is currently, hazardously employed. The majority finds in Finding of Fact No. 4, "plaintiff was exposed to asbestos for 30 days within a seven-month period, as is required by N.C. Gen. Stat. § 97-57." 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. The majority correctly finds that plaintiff continues to be employed by defendant. 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 defendant. The stipulation does not define when during the thirty-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,⁶ 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 employment involves a hazardous exposure to asbestos, yet suggests that he is able to safely continue in his current employment. 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 notcurrently 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, as well as those who are currently employed in positions where there is no evidence of current exposure to the hazards of asbestos (such as this case), 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.⁷

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 two reasons: (1) plaintiff does not have asbestosis; and (2) plaintiff has failed to establish that his employment presents a current hazard. Therefore, I find that plaintiff has not established entitlement to § 97-61.5(b) benefits.

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)⁸ 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).⁹ 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.

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 In evidence are reports concerning chest x-rays which have been read by numerous physicians. Plaintiff's October 17, 1990 x-ray was read to be completely negative by Dr. Weaver. Similarly, plaintiff's November 8, 1997 x-rays were also read to be completely negative by Dr. Johnson and Dr. Hayes. Plaintiff's July 12, 1999 x-ray was read by Dr. Grauel, Dr. Rao, Dr. Bernstein and Dr. Johnson to reveal a 1/0 profusion rating without evidence of any pleural abnormality. There are no B-reads in evidence that match or exceed a 1/1 profusion rating, which is the minimum required rating to support the diagnosis of asbestosis under the ATS standard. Plaintiff has also had two CT Scans, one in November 1997 and another on July 12, 1999. Dr. Johnson, one of plaintiff's chosen doctors, reported, "I see no CT interstitial abnormality" in comparing the two studies.

³ A prime example of the majority's failure to properly evaluate the evidence can be found in Finding of Fact No. 10, where the majority states: "Dr. Hayes testified that there were radiographic abnormalities consistent with asbestos causation." In Finding of Fact No. 11, the majority gives greater weight to the opinion of Dr. Hayes to the effect that plaintiff has asbestosis. Dr. Hayes, however, does not have this opinion. To the contrary, Dr. Hayes testified:

"Based on my review of the 1997 chest x-ray and a CT scan, it was my opinion to a reasonable degree of medical certainty that there were changes in the pleura that could be consistent with prior asbestos exposure, but there was no parenchymal change consistent with pulmonary fibrosis secondary to asbestos exposure and that the physiologic lung function was normal."

Deposition of Dr. Hayes, November 27, 2000, p. 49-50. Contrary to the findings of the majority, Deputy Commissioner Garner correctly found in Finding of Fact No. 5:

"Dr. Allen Hayes, a pulmonary specialist, reviewed plaintiff's November 1997 chest x-ray and found that the x-ray did not show evidence of parenchymal or pleural abnormalities that would be compatible with an asbestos etiology. Further Dr. Hayes noted that plaintiff's pulmonary function test results were normal, and the physical exams performed by Dr. Darcey and Dr. Whatley showed the chest to be clear."

The deputy commissioner then correctly found, based on Dr. Hayes deposition testimony, that plaintiff did not have asbestosis. It appears that Dr. Hayes found some pleural plaques that would be "consistent with" asbestos exposure, however, he did not find medical evidence of asbestosis, which is the scarring of the interstitial tissue of the lung. The majority appears to confuse evidence of medical findings that are "consistent with asbestosis" with the diagnosis of asbestosis. The mere fact that asbestosis is "possible" based on some medical findings when the diagnosis is not within a reasonable degree of medical certainty when all of the relevant medical evidence is reviewed, does not establish that plaintiff has asbestosis. See Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003) (expert's speculation is not sufficient evidence, reasonable degree of medical certainty standard should be applied). As Dr. Hayes explained on examination by counsel for plaintiff, "``consistent with' and ``diagnostic of' are two different things." Deposition of Dr. Hayes, November 27, 2000, p. 54.

⁴ 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 other words, relevant evidence tends to establish that a contested fact is more, or less, likely.

⁵ As explained in footnote 3, this x-ray was read by four radiologists selected by plaintiff and each of them reported a 1/0 profusion level without evidence of pleural abnormality. Although this not a completely normal, completely negative, reading, the 1/0 profusion level does not satisfy the minimum 1/1 reading required under the ATS standard.

⁶ The stipulation of the parties reads:

"Plaintiff was last injuriously exposed to asbestos during Plaintiff's employment with Defendant-Employer Weyerhaeuser Company, and specifically, that the Plaintiff-Employee was exposed to asbestos for thirty (30) days within a seven month period, as required by N.C. Gen. Stat. § 97-57."

⁷ 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.

⁸ As discussed, infra, plaintiff does not have a valid diagnosis of asbestosis.

⁹ The majority cites Honeycutt in Conclusion of Law No. 4 for the proposition that the 104 weeks of compensation has the additional purpose to compensate the employee for the incurable nature of the disease. Although Honeycutt is discussed in Hicks v. Leviton Mfg. Co.,121 N.C. App. 453, 466 S.E.2d 78 (1996), for the proposition that the employee is not entitled to recover both § 97-31(24) and §97-61.5(b) benefits, Honeycutt is actually a § 97-29 benefit case, rather than a § 97-61.5(b) action. And, thereby Honeycutt is consistent with Clark, Abernathy, and § 97-64, to the effect that an employee not entitled to § 97-61.5(b) benefits may qualify for benefits under the general provisions for disability. Thus, to hold that an employee is entitled to 104 weeks of compensation merely for a valid diagnosis of asbestosis is to ignore the remaining requirements of §97-61.5(b). See Austin, supra.

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).