{
  "id": 8527983,
  "name": "ROBERT B. BARBER, Employee, Plaintiff/Appellant v. BABCOCK & WILCOX CONSTRUCTION COMPANY, Employer, Defendant/Appellee, and INA/AETNA INSURANCE COMPANY, Carrier, Defendant/Appellee",
  "name_abbreviation": "Barber v. Babcock & Wilcox Construction Co.",
  "decision_date": "1991-02-05",
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  "casebody": {
    "judges": [
      "Judges COZORT and LEWIS concur."
    ],
    "parties": [
      "ROBERT B. BARBER, Employee, Plaintiff/Appellant v. BABCOCK & WILCOX CONSTRUCTION COMPANY, Employer, Defendant/Appellee, and INA/AETNA INSURANCE COMPANY, Carrier, Defendant/Appellee"
    ],
    "opinions": [
      {
        "text": "JOHNSON, Judge.\nWe note at the outset that plaintiff filed this action for workers\u2019 compensation benefits alleging that he had contracted the occupational disease of asbestosis in his job as an insulation worker. After a hearing, a Deputy Commissioner of the Industrial Commission found that plaintiff does, in fact, suffer from asbestosis, but that the defendant-employer is not liable for payment of workers\u2019 compensation under the purview of G.S. \u00a7 97-53(24) since plaintiff was not exposed to the hazards of asbestos for as much as thirty working days or parts therof during the course of his employment with defendant-employer as required by G.S. \u00a7 97-57. The Full Commission (hereinafter \u201cCommission\u201d) issued an Opinion and Award affirming the Deputy Commissioner\u2019s decision and plaintiff appealed. Upon review, this Court affirmed the entire decision of the Industrial Commission. Having misapplied the law as it relates to plaintiff\u2019s second Assignment of Error regarding the issue of injurious exposure, such decision was in error and is reversed. The opinion of this Court in Barber v. Babcock, 98 N.C. App. 203, 390 S.E.2d 341 (1990), is otherwise not disturbed and should be incorporated with our holding in the instant opinion.\nBy his second Assignment of Error, plaintiff contends that the Commission erred in applying an injurious exposure standard to his claim instead of the thirty-day presumption set out in G.S. \u00a7 97-57. We agree.\nGeneral Statutes \u00a7 97-57 provides in part that \u201c[i]n any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, is liable.\u201d G.S. \u00a7 97-57 also creates an irrebuttable legal presumption that the last thirty days of work is the period of last injurious exposure. Fetner v. Granite Works, 251 N.C. 296, 111 S.E.2d 324 (1959). Thus, \u201can exposure which proximately augmented the disease to any extent, however slight,\u201d is deemed the last injurious exposure. Therefore, plaintiff does not have to establish that the conditions of his employment with the defendant caused or significantly contributed to his disease. Caulder v. Waverly Mills, 314 N.C. 70, 73, 331 S.E.2d 646, 648 (1985); Rutledge v. Tultex Corp., 308 N.C. 85, 89, 301 S.E.2d 359, 362 (1983), quoting Haynes v. Feldspar Producing Co., 222 N.C. 163, 166, 22 S.E.2d 275, 277-78 (1942). He need only show that: (1) he has an occupational disease and (2) he was \u201clast injuriously exposed to the hazards of such disease\u201d in the defendant\u2019s employment. Id.\nHere, the Commission found as fact that plaintiff had last been exposed to the inhalation of asbestos in 1984, which was during the time of his employment with the defendant. The Commission further found that a negligible amount of asbestos existed in the air of defendant-employer\u2019s facility, but concluded that the plaintiff was not \u201cinjuriously exposed to the hazards of asbestos.\u201d Based upon the Commission\u2019s conclusion, it utilized the \u201clast injuriously exposed\u201d standard rather than the applicable thirty-day presumption set forth in G.S. \u00a7 97-57.\nIn 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\u2019s holding that plaintiff was exposed to the inhalation during the forty-eight days he worked for the defendant, such exposure must be deemed injurious. Therefore, plaintiff has satisfied his burden of proof and is entitled to workers\u2019 compensation benefits pursuant to G.S. \u00a7 97-53(24).\nAccordingly, the decision of the Industrial Commission as it relates to the issue of injurious exposure is\nReversed.\nJudges COZORT and LEWIS concur.",
        "type": "majority",
        "author": "JOHNSON, Judge."
      }
    ],
    "attorneys": [
      "Leonard T. Jemigan, Jr., P.A., by Leonard T. Jemigan, Jr., for plaintiff-appellant.",
      "Petree Stockton & Robinson, by Jane C. Jackson and Barbara E. Brady, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "ROBERT B. BARBER, Employee, Plaintiff/Appellant v. BABCOCK & WILCOX CONSTRUCTION COMPANY, Employer, Defendant/Appellee, and INA/AETNA INSURANCE COMPANY, Carrier, Defendant/Appellee\nNo. 8910IC588\n(Filed 5 February 1991)\nMaster and Servant \u00a7 68.2 (NCI3d)\u2014 asbestosis \u2014 application of \u201clast injuriously exposed\u201d standard \u2014 error\u2014application of thirty-day presumption required\nIn an action for workers\u2019 compensation benefits where plaintiff claimed that he had contracted the occupational disease of asbestosis, the Industrial Commission erred in utilizing the \u201clast injuriously exposed\u201d standard rather than the applicable thirty-day presumption of N.C.G.S. \u00a7 97-57; therefore, in 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\u2019s holding that plaintiff was exposed to the inhalation of asbestos during the forty-eight days he worked for defendant, such exposure must be deemed injurious, and plaintiff is entitled to workers\u2019 compensation benefits pursuant to N.C.G.S. \u00a7 97-53(24).\nAm Jur 2d, Workmen\u2019s Compensation \u00a7\u00a7 303, 409.\nPETITION for rehearing allowed for consideration of plaintiff\u2019s second Assignment of Error regarding the issue of injurious exposure. Heard in the Court of Appeals 21 January 1991.\nIn this action, plaintiff seeks workers\u2019 compensation benefits for the alleged contraction of an occupational disease during the course of his employment with defendant-employer.\nLeonard T. Jemigan, Jr., P.A., by Leonard T. Jemigan, Jr., for plaintiff-appellant.\nPetree Stockton & Robinson, by Jane C. Jackson and Barbara E. Brady, for defendants-appellees."
  },
  "file_name": "0564-01",
  "first_page_order": 592,
  "last_page_order": 594
}