{ "id": 9441503, "name": "JIMMIE CLARK, Employee-Plaintiff-Appellee v. ITT GRINNELL INDUSTRIAL PIPING, INCORPORATED, Employer-Defendant-Appellant, LIBERTY MUTUAL INSURANCE COMPANY, Carrier-Defendant-Appellant, CIGNA INSURANCE COMPANY, Carrier-Defendant-Appellant", "name_abbreviation": "Clark v. ITT Grinnell Industrial Piping, Inc.", "decision_date": "2000-12-29", "docket_number": "No. COA99-246", "first_page": "417", "last_page": "435", "citations": [ { "type": "official", "cite": "141 N.C. App. 417" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "489 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "378" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 126", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551278 ], "year": 1997, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0126-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1998, "pin_cites": [ { "page": "(5)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "189 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "parenthetical": "defendant voluntarily paid 104 weeks compensation to plaintiff who had quit in 1968 and thereafter sought benefits" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549521 ], "year": 1972, "pin_cites": [ { "parenthetical": "defendant voluntarily paid 104 weeks compensation to plaintiff who had quit in 1968 and thereafter sought benefits" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0253-01" ] }, { "cite": "478 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "awarding plaintiff, who retired in 1987 and filed claim in 1989, 104 weeks compensation pursuant to N.C.G.S. \u00a7 97-61.5 and $4,000 for permanent lung damage pursuant to N.C.G.S. \u00a7 97-31(24)" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890380 ], "year": 1996, "pin_cites": [ { "parenthetical": "awarding plaintiff, who retired in 1987 and filed claim in 1989, 104 weeks compensation pursuant to N.C.G.S. \u00a7 97-61.5 and $4,000 for permanent lung damage pursuant to N.C.G.S. \u00a7 97-31(24)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0653-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-31", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(24)" } ], "opinion_index": 0 }, { "cite": "514 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "plaintiff retired and then sought benefits for asbestosis; Commission awarded $20,000 for permanent injury to his lungs pursuant to N.C. Gen. Stat. \u00a7 97-31(24) and held that employer was not entitled to credit for payment of 104 weeks pursuant to N.C.G.S. \u00a7 97-61.5" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240404 ], "year": 1999, "pin_cites": [ { "parenthetical": "plaintiff retired and then sought benefits for asbestosis; Commission awarded $20,000 for permanent injury to his lungs pursuant to N.C. Gen. Stat. \u00a7 97-31(24) and held that employer was not entitled to credit for payment of 104 weeks pursuant to N.C.G.S. \u00a7 97-61.5" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0771-01" ] }, { "cite": "419 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "584", "parenthetical": "stating that a reviewing court should defer to an agency's reasonable interpretation of a statute it administers" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527496 ], "year": 1992, "pin_cites": [ { "page": "279", "parenthetical": "stating that a reviewing court should defer to an agency's reasonable interpretation of a statute it administers" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0278-01" ] }, { "cite": "301 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "744-45", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523851 ], "year": 1983, "pin_cites": [ { "page": "710-11", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0706-01" ] }, { "cite": "49 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "801" } ], "opinion_index": 0 }, { "cite": "229 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166064 ], "year": 1948, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0360-01" ] }, { "cite": "466 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "81" }, { "page": "81" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917769 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "457" }, { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0453-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-61.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-61.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-64", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1991, "opinion_index": 0 }, { "cite": "469 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1996, "pin_cites": [ { "page": "596" }, { "page": "598", "parenthetical": "citation omitted" }, { "page": "595" }, { "page": "596" }, { "page": "596" }, { "page": "597", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917329 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0375-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1998, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-61.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1998, "opinion_index": 0 }, { "cite": "403 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "328 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538925 ], "year": 1991, "pin_cites": [ { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0651-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "471 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918417 ], "year": 1996, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0507-01" ] }, { "cite": "484 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "569", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "346 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139569 ], "year": 1997, "pin_cites": [ { "page": "88", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0084-01" ] }, { "cite": "264 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "101", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "299 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575832 ], "year": 1980, "pin_cites": [ { "page": "726", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0723-01" ] }, { "cite": "159 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "273 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575029 ], "year": 1968, "pin_cites": [ { "page": "252" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0240-01" ] }, { "cite": "374 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "613", "parenthetical": "\"[T]he 'full Commission' is not an appellate court in the sense that it reviews decisions of a trial court. It is the duty and responsibility of the full Commission to make detailed findings of fact and conclusions of law with respect to every aspect of the case before it.\"" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527201 ], "year": 1988, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0478-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 97-60", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "144 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "265 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575582 ], "year": 1965, "pin_cites": [ { "page": "433-34" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0431-01" ] }, { "cite": "335 S.E.2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "51" }, { "parenthetical": "awarding 104 weeks compensation to plaintiff who retired in 1979 and filed claim in 1982" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522400 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "awarding 104 weeks compensation to plaintiff who retired in 1979 and filed claim in 1982" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0352-01" ] }, { "cite": "303 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "797" } ], "opinion_index": 0 }, { "cite": "308 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705893 ], "year": 1983, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0665-01" ] }, { "cite": "339 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "496", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 324", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520586 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "333-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0324-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-57", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "532 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132282, 131930, 132234, 132199 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0108-02", "/nc/350/0108-04", "/nc/350/0108-03", "/nc/350/0108-01" ] }, { "cite": "509 S.E.2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "413-14", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "349 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571666 ], "year": 1998, "pin_cites": [ { "page": "680-81", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0676-01" ] }, { "cite": "141 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573590 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0401-01" ] }, { "cite": "468 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918820 ], "year": 1996, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0570-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-61.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-62", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 97-86", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1998, "opinion_index": 0 } ], "analysis": { "cardinality": 1410, "char_count": 42971, "ocr_confidence": 0.769, "pagerank": { "raw": 3.217324317198994e-07, "percentile": 0.8668773739318393 }, "sha256": "87b5443ab854b31238a8d722aa16ebbc794aa4f97442c68aba4e331532ca066e", "simhash": "1:ed69c56b74be425a", "word_count": 6756 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HORTON and EDMUNDS concur." ], "parties": [ "JIMMIE CLARK, Employee-Plaintiff-Appellee v. ITT GRINNELL INDUSTRIAL PIPING, INCORPORATED, Employer-Defendant-Appellant, LIBERTY MUTUAL INSURANCE COMPANY, Carrier-Defendant-Appellant, CIGNA INSURANCE COMPANY, Carrier-Defendant-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nPursuant to N.C. Gen. Stat. \u00a7 97-86 (Cum. Supp. 1998), defendant-employer ITT Grinnell Industrial Piping, Inc. (ITT Grinnell) and defendant-carrier Liberty Mutual Insurance Company (Liberty Mutual) appeal an opinion and award of the North Carolina Industrial Commission (the Commission) entered 23 September 1998. The Commission, in reversing the deputy commissioner\u2019s opinion and award entered 15 July 1997, awarded plaintiff-employee Jimmie Clark workers\u2019 compensation benefits for \u201cAsbestos-related lung disease.\u201d\nPlaintiff testified he worked as a pipe fitter for multiple employers for most of his life. He began working as a pipe fitter in 1952 at the age of eighteen in the shipyards of Newport News, Virginia, where he was exposed to asbestos products or dust during his employment.\nPlaintiff changed jobs in June 1969, and for almost the next twenty-six years he was employed at an ITT Grinnell plant, formerly Carolina Industries Piping Company. ITT Grinnell fabricated pipes for use in nuclear power plants. Plaintiff began work in Bay One at ITT Grinnell as a pipe fitter for one week. He then worked in Bay Two for six months. Afterward, plaintiff trained in Bay Four for four months and then was transferred to Bay Three, where \u201cheavy wall piping\u201d was fabricated. Almost all of plaintiffs work, until the end of his employment in February 1985, occurred in Bay Three.\nPlaintiff testified that as a pipe fitter in Bay Three his primary duties were to cut holes and preheat piping joints with a torch before they were fitted by welders. Plaintiff occasionally performed welding operations after he pre-heated a pipe.\nAs a pipe fitter, plaintiff testified that he wore \u201cburning gloves\u201d or mittens made of asbestos to protect his hands from the heat. He continued to wear the asbestos gloves until they were replaced with non-asbestos gloves in late 1974.\nPlaintiff testified that he worked in proximity to where stress relief operations were performed on the floor in Bay Three. To perform stress relief, an electric coil was wrapped around the necessary part of the pipe and fitting. The heating coil and the pipe were then wrapped with asbestos cloth and secured. The pipe and cloth remained in that position until a certain temperature was reached. Plaintiff also testified that he would lay the asbestos wrap over a pipe that had been pre-heated.\nDuring plaintiffs first year in Bay Three, the ITT Grinnell plant completed a special, free-standing stress relief furnace that sat outside the bay area. It had a railroad car bottom, approximately ten-feet wide by forty-feet long with \u201cfire bricks\u201d on it. This railroad car bottom was rolled from the outside furnace to the inside of Bay Three, very close to plaintiffs work position. Plaintiff testified in his deposition that the railroad car carried soft, fibrous mortar and dust. After the stress relief furnace was constructed, the plant rarely used the stress relief on the floor in Bay Three.\nThe Commission heard testimony of Samuel Andrews (Andrews), who was employed by ITT Grinnell from 1969 to 1977. Andrews said that he wore asbestos gloves every day to handle hot pipes. He confirmed plaintiffs testimony that asbestos wrap was used on hot pipes in Bay Three. Furthermore, Andrews testified that he saw white residue of asbestos on the pipe after the pipe came out of the stress relieving furnace.\nAdolphus Young (Young) testified he worked for ITT Grinnell from 1969 to 1984. After Bay Three was completed, Young worked there most of the time. Young testified that he wore asbestos-containing gloves. In addition, he said that asbestos wrap was used during performance of stress relief on the floor. Later, Young operated the stress relief furnace. He stated that on a regular basis he would prepare a pipe for the furnace by putting an asbestos wrap on it.\nMichael Valentine (Valentine), a senior welding engineer at ITT Grinnell from 1974 to 1985, testified that asbestos wrap was not used when the pipes went into the stress relief furnace. He also speculated that the ashes that accompanied the pipe after it was removed from the furnace were \u201crelated to [] the protective coating\u201d of the pipe. However, Valentine also acknowledged that ITT Grinnell \u201cprobably used some form of asbestos wrap\u201d before he began working there in 1974.\nThe Commission found as fact:\n5. The Plaintiffs employment with Defendant/employer provided exposure to asbestos materials on a regular basis. These materials included asbestos welding gloves, asbestos pipe wrap, asbestos brick, asbestos mortar, asbestos dust from the railroad car from the outside furnace, and other asbestos containing materials. The plaintiffs last injurious exposure to asbestos was with Defendant/employer between the years 1974 through 1975, when the plant stopped using asbestos-containing products.\n6. Plaintiff was diagnosed with asbestosis and was advised of this condition June 15, 1989.\n8. Plaintiff underwent his first and only Advisory Medical Committee examination by Dr. C.D. Young on November 4, 1991. It was Dr. Young\u2019s opinion that Plaintiff, more likely than not, had asbestosis.\nBased on these findings of fact, the Commission concluded:\n1. Plaintiff has asbestosis as defined by N.C. Gen. Stat. \u00a7 97-62. Plaintiffs last injurious exposure to asbestos occurred while working for Defendant/employer before the plant stopped using asbestos materials. Therefore, Plaintiff is eligible for compensation pursuant to N.C. Gen. Stat. \u00a7 97-61.5.\n2. In order for the uninsured Defendant/employer to incur liability in this case, Plaintiffs last injurious exposure to asbestos must have occurred during the time Defendant/employer was uninsured, which was before January 1, 1972. Plaintiffs last injurious exposure occurred after January 1, 1972. Therefore, the uninsured Defendant/employer has no liability.\n5. As a result of his contraction of asbestosis, Plaintiff is entitled to receive weekly compensation at the rate of $319.38 per week for a period of 104 weeks commencing as of November 4, 1991. N.C. Gen. Stat. \u00a7 97-61.5.\n(Citation omitted.)\nThe Commission awarded plaintiff workers\u2019 compensation benefits from Liberty Mutual only, and all other claims of plaintiff against defendants were denied. Defendants appeal from the opinion and award of the Commission.\nI.\nDefendants argue that the Commission erred in finding that plaintiff had asbestosis, as defined in N.C. Gen. Stat. \u00a7 97-62 (1991). Under the North Carolina Workers\u2019 Compensation Act, asbestosis is defined as the \u201ccharacteristic fibrotic condition of the lungs caused by the inhalation of asbestos dust.\u201d Id. Relying on certain medical literature and learned treatises, defendants contend that asbestosis is \u201ca distinct medical condition with specific characteristics and risks\u201d and is distinguishable from \u201cpleural plaques\u201d in the lungs.\nOur Court\u2019s standard of review in an appeal from the Commission is limited to two questions: (1) whether there is any competent evidence to support the Commission\u2019s findings of fact and (2) whether the findings support the Commission\u2019s conclusions of law. See Lowe v. BE&K Construction Co., 121 N.C. App. 570, 573, 468 S.E.2d 396, 397 (1996). Our Supreme Court recently stated:\nUnder our Workers\u2019 Compensation Act, \u201cthe Commission is the fact finding body.\u201d \u201cThe Commission is the sole judge of the credibility of the witnesses and the weight to be given their testimony.\u201d\n\u201cThe findings of fact by the Industrial Commission are conclusive on appeal if supported by any competent evidence.\u201d Thus, on appeal, this Court \u201cdoes not have the right to weigh the evidence and decide the issue on the basis of its weight. The court\u2019s duty goes no further than to determine whether the record contains any evidence tending to support the finding.\u201d\nN.C.G.S. \u00a7 97-86 provides that \u201can award of the Commission upon such review, as provided in G.S. 97-85, shall be conclusive and binding as to all questions of fact.\u201d As we stated in Jones v. Myrtle Desk Co., 264 N.C. 401, 141 S.E.2d 632 (1965), \u201c[t]he findings of fact of the Industrial Commission are conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\u201d The evidence tending to support plaintiffs claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence.\nAdams v. AVX Corp. 349 N.C. 676, 680-81, 509 S.E.2d 411, 413-14 (1998) (alteration in original) (internal citations omitted), reh\u2019g denied, 350 N.C. 108, 532 S.E.2d 522 (1999).\nViewing the evidence in the light most favorable to plaintiff, the record before us contains competent evidence to support the Commission\u2019s findings that plaintiff suffered from asbestosis. On 17 September 1990, plaintiff was examined by Dr. David E. Shanks (Dr. Shanks), an expert in pulmonary medicine who is affiliated with the North Carolina Industrial Commission\u2019s Advisory Medical Committee. According to Dr. Shanks\u2019 initial examination, plaintiff\u2019s x-rays indicated evidence of \u201cpleural plaques and thickening.\u201d Dr. Shanks later opined that plaintiff had \u201cfibrotic conditions of the lung [] characteristic of asbestos exposure.\u201d Dr. Clinton D. Young (Dr. Young), a pulmonary specialist, examined plaintiff on 4 November 1991 and found that \u201c[c]hest x-ray reveals definite pleural plaques quite consistent with asbestos exposure.\u201d In his deposition testimony, Dr. Young stated:\nQ ... Do you have an opinion as to whether Mr. Clark more likely than not has asbestosis?\nA Yes.\nQ What is your opinion?\nA My opinion was that more likely than not, he did.\nDr. Andrew J. Ghio (Dr. Ghio), an expert in pulmonary medicine, reviewed plaintiffs x-rays on 8 August 1994 and observed \u201c[ejvidence on chest radiograph consistent with a significant asbestos exposure.\u201d Dr. Ghio confirmed his opinion in later testimony. There was sufficient evidence in the record before the Commission to support its finding of fact that plaintiff has asbestosis.\nII.\nDefendants next challenge the sufficiency of the evidence supporting the Commission\u2019s findings that plaintiff was injuriously exposed to the \u201chazards\u201d of asbestos while employed with defendant ITT Grinnell. The statute upon which defendants rely provides in part:\nIn 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, shall be liable.\nFor the purpose of this section when an employee has been exposed to the hazards of asbestosis or silicosis for as much as 30 working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious but any less exposure shall not be deemed injurious ....\nN.C. Gen. Stat. \u00a7 97-57 (1991) (emphasis added). More specifically, defendants contend the Commission lacked any scientific evidence concerning the presence of airborne, asbestos fibers at the ITT Grinnell plant. We disagree.\nIn Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490 (1986), the defendants argued that expert testimony about the plaintiffs exposure to toxic fumes while in the defendant-employer\u2019s employment was \u201cmere speculation\u201d because the levels of toxic substances in plaintiff\u2019s workplace were never actually measured. In quoting McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 668, 303 S.E.2d 795, 797 (1983), a case in which our Supreme Court rejected the employer\u2019s argument that the employee must introduce evidence of the noise level to recover benefits for loss of hearing, our Supreme Court reiterated the unreasonableness of such a high standard of proof:\n\u201cIt is unreasonable to assume that the legislature intended an employee to bear the burden of making noise-level measurements during his employment in order to lay the groundwork for a worker\u2019s compensation claim. Such an interpretation of the statute would make it virtually impossible for an employee to successfully bring suit for compensation for a hearing loss, due to the difficulty he would encounter in attempting to make measurements of sound on his employer\u2019s premises. A construction of the statute which defeats its purpose \u2014 to provide a means by which employees can recover for injury due to harmful workplace noise \u2014 would be irrational and will not be adopted by this Court.\u201d\nGay, 79 N.C. App. at 333-34, 339 S.E.2d at 496 (citation omitted). In applying Gay and McGuiston, we conclude that a claimant need not introduce scientific evidence to prove his exposure to asbestos for the purposes of N.C.G.S. \u00a7 97-57.\nWe also note that less evidence than was presented in this case was specifically found to be sufficient in Woodell v. Starr Davis Co., 77 N.C. App. 352, 335 S.E.2d 48 (1985). In Woodell, the plaintiff filed a workers\u2019 compensation asbestos claim against an insulation contractor and its insurance carrier. Like defendants\u2019 argument in our case, the defendants in Woodell contended that the evidence produced did not support the Commission\u2019s findings or conclusion that the plaintiff was injuriously exposed to asbestos. However, unlike plaintiff in our case, the plaintiff in Woodell was the only witness to testify that he worked with asbestos-containing pipes. The Woodell Court held this evidence to be sufficient. Id. at 357, 335 S.E.2d at 51.\nIn the case before us, plaintiff specifically testified that he wore asbestos gloves and that he would lay asbestos wrap over a pipe during stress relief operations on the floor. Plaintiff testified that the railroad bottom of the stress relief furnace, which carried asbestos, would be rolled near his work position. Andrews testified that he also wore asbestos gloves and saw white residue of asbestos on the pipe after the pipe came out of the furnace. Young also said he wore asbestos gloves. Moreover, he stated that he would prepare a pipe for the furnace by putting an asbestos wrap on it. Even Valentine, a witness for defendants and senior engineer at the plant, acknowledged that ITT Grinnell \u201cprobably used some form of asbestos wrap\u201d before he arrived there in 1974. In addition, as discussed above, all three medical experts found that plaintiffs chest x-rays revealed conditions consistent with asbestos exposure. Because the Commission is the sole judge of the credibility of witnesses and the weight to be given their testimony, Anderson v. Construction Co., 265 N.C. 431, 433-34, 144 S.E.2d 272, 274 (1965), we hold that there was competent evidence to support the Commission\u2019s finding that plaintiff was exposed to asbestos.\nIII.\nDefendants next contend the Commission erred by applying the provisions of N.C. Gen. Stat. \u00a7\u00a7 97-60 through -61.7 (1991 & Cum. Supp. 1998) in this case because there was no evidence that plaintiff was \u201cengaged or about to engage in\u201d an occupation that the Commission had found to expose employees to the hazards of asbestosis. In response, plaintiff contends we should not reach this issue because \u201cit was not raised until after all the evidence had been submitted, the case had been decided by the Deputy Commissioner, and was on appeal before the Full Commission.\u201d However, it is the Commission\u2019s duty to consider every aspect of the claim whether before the hearing officer or on appeal to the Commission. See Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 482, 374 S.E.2d 610, 613 (1988) (\u201c[T]he \u2018full Commission\u2019 is not an appellate court in the sense that it reviews decisions of a trial court. It is the duty and responsibility of the full Commission to make detailed findings of fact and conclusions of law with respect to every aspect of the case before it.\u201d). Accordingly, the fact that this issue was not raised until it was reviewed by the Commission is of no consequence to our appellate review of the case. We thus turn to the merits of defendants\u2019 argument.\nAlthough the Workers\u2019 Compensation Act should be liberally construed, see Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E.2d 874, 882 (1968), \u201c \u2018[j]udges must interpret and apply statutes as they are written,\u2019 \u201d Andrews v. Nu-Woods, Inc., 299 N.C. 723, 726, 264 S.E.2d 99, 101 (1980) (alteration in original) (citation omitted), \u201censuring] that the legislative intent is accomplished,\u201d Radzisz v. Harley Davidson of Metrolina, 346 N.C. 84, 88, 484 S.E.2d 566, 569 (1997) (citation omitted). Statutes should be reconciled with each other whenever possible, avoiding interpretations that would create conflicts between two or more statutes. See Meyer v. Walls, 122 N.C. App. 507, 512, 471 S.E.2d 422, 427 (1996), aff\u2019d in part, rev\u2019d in part on other grounds, 347 N.C. 97, 489 S.E.2d 880 (1997).\nWe begin this interpretation of the statutes by examining the plain words of the statutes. See Electric Supply Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). The language on which defendants rely is derived from N.C. Gen. Stat. \u00a7 97-60 (Cum. Supp. 1998), which reads in pertinent part:\nThe compulsory examination of employees and prospective employees as herein provided applies only to persons engaged or about to engage in an occupation which has been found by the Industrial Commission to expose them to the hazards of asbestosis and/or silicosis. .. . [I]t shall be the duty of every employer, in the conduct of whose business his employees or any of them are subjected to the hazard of asbestosis and/or silicosis, to provide prior to employment necessary examinations of all new employees for the purpose of ascertaining if any of them are in any degree affected by asbestosis and/or silicosis or peculiarly susceptible thereto; and every such employer shall from time to time, as ordered by the Industrial Commission, provide similar examinations for all of his employees whose employment exposes them to the hazards of asbestosis and/or silicosis.\nBy its very terms, N.C.G.S. \u00a7 97-60 establishes a requirement that certain employers (i.e., those found by the Commission to subject its employees to the hazards of asbestosis or silicosis) screen potential and current employees for any signs of asbestosis or asbestos-related disorders. N.C.G.S. \u00a7 97-60 is limited to \u201cpersons engaged or about to engage in\u201d employment with an industry classified as a \u201cdusty trade.\u201d\nHowever, N.C.G.S. \u00a7 97-60 stands alone in its application; the employer\u2019s status (or lack thereof) as a \u201cdusty trade\u201d does not impact the application of the examination and compensation scheme set forth in N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7. The language in those sections refers to \u201can employee [who] has asbestosis or silicosis,\u201d N.C. Gen. Stat. \u00a7 97-61.1 (Cum. Supp. 1998), and speaks generally to \u201cemployers.\u201d Limiting the application of N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7 to employers designated as \u201cdusty trades\u201d would adversely affect the class of employees suffering from asbestosis or silicosis, thus thwarting the intent of the General Assembly to compensate employees who have contracted asbestosis.\nSimilarly, the language in N.C.G.S. \u00a7 97-60, \u201cpersons engaged or about to engage in,\u201d does not extend to N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7. The language of N.C.G.S. \u00a7 97-60 is more far-reaching than that used in N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7, in that N.C.G.S. \u00a7 97-60 requires screening of both current and prospective employees, whereas N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7 apply only to \u201cemployees.\u201d\nWe find support for our interpretation in N.C. Gen. Stat. \u00a7 97-72 (Cum. Supp. 1998), which sets forth as one of the specific statutory purposes for creation of the advisory medical committee \u201cto conduct examinations and make reports as required by G.S. 97-61.1 through 97-61.6.\u201d (Emphasis added.) The General Assembly\u2019s omission of N.C.G.S. \u00a7 97-60 further suggests the exclusivity of that section.\nAccordingly, we disagree with defendants\u2019 arguments in this regard and hold that an employer need not be designated a \u201cdusty trade\u201d for N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7 to apply. Likewise, the \u201cengaged or about to engage in\u201d language of N.C.G.S. \u00a7 97-60 does not carry over to the screening and reporting provisions of N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7.\nHowever, defendants also contend that \u201cmost importantly, the payment of one hundred four weeks of compensation is reserved to those employees who are actually removed from their employment.\u201d (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).\n[T]he term \u201cremoval\u201d as used by G.S. \u00a7 97-61.5 presumes medical diagnosis will occur during the hazardous employment. Thus, the language regarding \u201cremoval from the industry\u201d has specific application only to occasions when .. . identified victims of occupational disease [] are thereafter \u201cremoved\u201d from a hazardous industry by directive of the Commission. However, the phrase is inapposite to instances such as that sub judice wherein a claimant is diagnosed at some point subsequent to leaving hazardous employment.\nId. at 378, 469 S.E.2d at 596. An important distinction, however, is that in Moore, the defendant agreed that the plaintiff was entitled to benefits under N.C.G.S. \u00a7 97-61.5(b). For that reason,\nwe emphasize[d] that the situation of a claimant no longer employed in any capacity at the time of diagnosis is not before us, and that legislative action to address such an instance may well be required to fulfill completely the intended purpose of compensating workers who have contracted occupational diseases.\nId. at 380, 469 S.E.2d at 598 (citation omitted). We believe, however, that a close reading of the statutes resolves the situation referred to in Moore and now presented to our Court.\nThe general rule for recovery for individuals suffering from asbestosis or asbestos-related disorders is found at N.C. Gen. Stat. \u00a7 97-64 (1991), which provides:\nExcept 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\u2019 Compensation Act.\nThe exceptions to which N.C.G.S. \u00a7 97-64 refers are found in N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7. N.C.G.S. \u00a7\u00a7 97-61.1 through -61.4 establish a series of examinations by the Commission\u2019s advisory medical committee of \u201can employee [who] has asbestosis or silicosis\u201d and reports to be made from those examinations. Id. \u00a7 97-61.1. After the first examination and report, see id. \u00a7\u00a7 97-61.1, -61.2 (1991), N.C. Gen. Stat. \u00a7 97-61.5(b) (1991) mandates the following:\nIf the Industrial Commission finds at the first hearing that the employee has either asbestosis or silicosis ... it shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis or silicosis . . . ; provided, that if the employee is removed from the industry the employer shall pay or cause to be paid ... to the employee affected by such asbestosis or silicosis a weekly compensation equal to sixty-six and two-thirds percent (66 2/3%) of his average weekly wages before removal from the industry... which compensation shall continue for a period of 104 weeks.\n(Emphasis added.) N.C. Gen. Stat. \u00a7 97-61.6 (1991) then provides means for recovering additional partial or total disability and compensation for resulting death due to asbestosis or silicosis.\nLooking solely at the language of N.C.G.S. \u00a7 97-61.5(b), it appears that recovery under this section requires that an employee be removed from the industry. However, the Act is to be construed in para materia, and N.C. Gen. Stat. \u00a7 97-61.7 (1991) aids in resolving the situation posed by the Moore Court. N.C.G.S. \u00a7 97-61.7 reads in pertinent part:\nAn. 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 . . . shall bar any further claims by the employee, . . . 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.\n(Emphasis added.) Construing the Workers\u2019 Compensation Act \u201cliberally in favor of the injured worker,\u201d Hicks v. Leviton Mfg. Co., 121 N.C. App. 453, 457, 466 S.E.2d 78, 81 (1996), which we are required to do, we read these sections together as evidencing the General Assembly\u2019s intent to allow an injured plaintiff to remain in the harmful work environment and receive the 104 weeks of compensation. Accordingly, contrary to defendants\u2019 argument, removal from the industry is not required for an employee to receive the 104 weeks of compensation.\nThis automatic compensation scheme satisfies the legislative purpose of providing \u201ccompensation to those workers affected with asbestosis or silicosis, whose principal need is compensation.\u201d Young v. Whitehall Co., 229 N.C. 360, 365, 49 S.E.2d 797, 801 (1948).\nOur reading of these statutes is further guided by earlier statements by our appellate courts. In Roberts v. Southeastern Magnesia and Asbestos Co., our Court set forth the language of N.C.G.S. \u00a7\u00a7 97-61.5(b) and -61.7 and stated:\nIt is clear from the language of these two statutes that a diagnosis of asbestosis ... is the equivalent of a finding of actual disability.. . .\nThe Commission\u2019s award was predicated upon the employee avoiding further exposure to asbestos [] 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[.] 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. 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.\n61 N.C. App. 706, 710-11, 301 S.E.2d 742, 744-45 (1983) (emphasis added) (internal citations omitted). Our Court, in Hicks, 121 N.C. App. at 456, 466 S.E.2d at 81, quoted Roberts with approval and stated: \u201cThus, this Court has previously concluded that the Legislature intended compensation under G.S. \u00a7 97-61.5(b) as compensation for permanent damage to the employee\u2019s lungs due to asbestosis as well as for switching trades.\u201d (Emphasis added.)\nFinally, we give deference to the Commission\u2019s determination in similar situations. See Carpenter v. N.C. Dept. of Human Resources, 107 N.C. App. 278, 279, 419 S.E.2d 582, 584 (1992) (stating that a reviewing court should defer to an agency\u2019s reasonable interpretation of a statute it administers). Our reading of the statutes is consistent with employers\u2019 and the Commission\u2019s long-standing practices of paying and awarding benefits, pursuant to N.C.G.S. \u00a7 97-61.5, to employees such as plaintiff. See, e.g., Davis v. Weyerhaeuser Co., 132 N.C. App. 771, 514 S.E.2d 91 (1999) (plaintiff retired and then sought benefits for asbestosis; Commission awarded $20,000 for permanent injury to his lungs pursuant to N.C. Gen. Stat. \u00a7 97-31(24) and held that employer was not entitled to credit for payment of 104 weeks pursuant to N.C.G.S. \u00a7 97-61.5); Stroud v. Caswell Center, 124 N.C. App. 653, 478 S.E.2d 234 (1996) (awarding plaintiff, who retired in 1987 and filed claim in 1989, 104 weeks compensation pursuant to N.C.G.S. \u00a7 97-61.5 and $4,000 for permanent lung damage pursuant to N.C.G.S. \u00a7 97-31(24)); Woodell v. Starr Davis, 77 N.C. App. 352, 335 S.E.2d 48 (1985) (awarding 104 weeks compensation to plaintiff who retired in 1979 and filed claim in 1982); Mabe v. Granite Corp., 15 N.C. App. 253, 189 S.E.2d 804 (1972) (defendant voluntarily paid 104 weeks compensation to plaintiff who had quit in 1968 and thereafter sought benefits).\nAccordingly, we hold that an employee need not be \u201cremoved\u201d from employment to be entitled to the 104 weeks compensation set forth in N.C.G.S. \u00a7 97-61.5. Defendants\u2019 assignments of error on this issue are overruled.\nIV.\nDefendants next argue that if N.C.G.S. \u00a7 97-60 and \u00a7\u00a7 97-61.1 through -61.7 do apply to the parties in this case where they contend \u201cplaintiff was not engaged or about to engage in an employment that exposed him to the hazards of asbestosis and was not otherwise forcibly removed from his occupation as a result of the asbestosis diagnosis, then the application of\u2019 those provisions violates defendants\u2019 right to equal protection of the law as guaranteed by the Constitutions of the United States and the state of North Carolina. Defendants contend that there are many other occupational diseases as serious as asbestosis and silicosis and by providing for an automatic 104 weeks of compensation for employees who suffer from asbestosis or silicosis but not so providing for employees with other occupational diseases makes these provisions \u201cgrossly under-inclusive.\u201d\nDefendants\u2019 argument is, in essence, that the under-inclusive nature of the asbestosis statutes somehow \u201cplaces a disproportionate and unconstitutional burden on Defendants.\u201d In response, plaintiff contends that defendants have no standing to raise this issue.\nWe note that a similar constitutional challenge was made by the defendant-employer in Jones v. Weyerhaeuser Co., No. COA99-742 (N.C. App. Dec. 29, 2000), where the defendant argued that N.C.G.S. \u00a7 97-61.5 denied its company equal protection because the statute treats employers with employees who are exposed to asbestos and silica differently than employers with employees who are not exposed to asbestos and silica. However, the defendant in Jones argued it sustained some monetary injury by application of N.C.G.S. \u00a7 97-61.5. Id., slip op. at 4. (\u201c[BJecause [defendant\u2019s] business exposed its workers to asbestos, defendant is \u2018burdened with additional liability for workers compensation benefits, with which similarly situated employers\u2019 (whose businesses did not expose their workers to asbestos or silica) are not so burdened.\u201d). Conversely, neither defendant in the case before us alleges any disparate economic impact resulting from application of the asbestosis statutes. Thus, while in Jones the defendant\u2019s argument was \u201cat best tenuous,\u201d id., defendants\u2019 argument in this case is untenable. Nonetheless, we upheld the constitutionality of N.C.G.S. \u00a7 97-61.5 in Jones and we rely upon the language set forth therein to now overrule defendants\u2019 constitutional challenge to N.C.G.S. \u00a7\u00a7 97-60 and -61.1 through -61.7. This assignment of error is overruled.\nV.\nFinally, defendants contend the Commission erred in calculating plaintiffs \u201caverage weekly wage\u201d in awarding compensation. As to plaintiffs average weekly wage, the Commission found:\n3. As of the last date of employment with Defendant/ employer, Plaintiff earned $24,899.10 in his last full year of employment, his applicable average weekly wage being $478.83, which yields a workers\u2019 compensation rate of $319.38.\nBased upon this finding and citing N.C.G.S. \u00a7\u00a7 97-57 and 97-61.5, the Commission concluded:\n4. The defendant/carrier Liberty Mutual was on the risk at the time of Plaintiff\u2019s last injurious exposure and is, therefore, liable for payment of compensation due Plaintiff pursuant to the Act.\n5. As a result of his contraction of asbestosis, Plaintiff is entitled to receive weekly compensation at the rate of $319.38 per week for a period of 104 weeks ....\nDefendants contend plaintiff\u2019s compensation rate should have been calculated based upon the year of his \u201clast injurious exposure,\u201d citing N.C. Gen. Stat. \u00a7 97-54 (1991), which defines \u201cdisablement.\u201d However, compensation under N.C.G.S. \u00a7\u00a7 97-61.1 through -61.7 is unrelated to actual disablement. N.C.G.S. \u00a7 97-61.5(b) provides that\nthe 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 (66 2/3%) of his average weekly wages before removal from the industry, but not more than the amount established annually to be effective October 1 as provided in G.S. 97-29 or less than thirty dollars ($30.00) a week ....\n(Emphasis added.) \u201cAverage weekly wage\u201d is defined as:\n[1.] [T]he earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury...; provided, results fair and just to both parties will be thereby obtained. . . .\n[5.] But where for exceptional reasons the foregoing would be unfair, either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.\nN.C. Gen. Stat. \u00a7 97-2(5) (Cum. Supp. 1998). There is no requirement of actual disablement in the asbestosis statutes, and defendants\u2019 contention must fail. Nonetheless, we find the Commission\u2019s findings deficient on the issue of plaintiff\u2019s average weekly wage.\nN.C.G.S. \u00a7 97-2(5) \u201c \u2018provides a hierarchy\u2019 of five methods of computing the average weekly wages.\u201d McAninch v. Buncombe County Schools, 347 N.C. 126, 130, 489 S.E.2d 375, 378 (1997). Accordingly, if the first method prescribed would be \u201cfair and just,\u201d it is the method to be employed. \u201cThe final method, as set forth in the last sentence, clearly may not be used unless there has been a finding that unjust results would occur by using the previously enumerated methods.\u201d Id. (citation omitted).\nOur Court addressed the applicability of the first method to facts similar to those now presented in Moore, 122 N.C. App. 375, 469 S.E.2d 594. The parties in Moore entered into an agreement whereby the employer and insurance company agreed to compensate the employee, pursuant to N.C.G.S. \u00a7 97-61.5(b), for 104 weeks of compensation at the rate of $62.01 per week (sixty-six and two-thirds percent of the plaintiff\u2019s average weekly wage earned during his last year of employment with the defendant-employer). The agreement was contingent on \u201ca determination by the Commission as to whether the appropriate rate had been paid.\u201d Id. at 376, 469 S.E.2d at 595. The Commission adopted the deputy commissioner\u2019s opinion and award, which had set the plaintiff\u2019s weekly compensation rate at $263.42 (or sixty-six and two-thirds percent of his average weekly wage earned during the fifty-two weeks prior to diagnosis of silicosis).\nOn appeal to this Court, the defendants in Moore argued \u201cthat the average weekly wage governing compensation is that which the employee was receiving \u2018before removal from the industry\u2019 within which silicosis was contracted.\u201d Id. at 377, 469 S.E.2d at 596. Conversely, the plaintiff contended that the \u201cdate of the injury,\u201d N.C.G.S. \u00a7 97-2(5), was the time of diagnosis, thus mandating that \u201ccompensation [] be calculated based upon his wages \u2018during the period of 52 weeks immediately preceding the date\u2019 of diagnosis,\u201d Moore, 122 N.C. App. at 377, 469 S.E.2d at 596. We agreed with the plaintiffs argument and held that, for purposes of calculating the average weekly wages (pursuant to the first method set out in N.C.G.S. \u00a7 97-2(5)) of a claimant who is diagnosed with asbestosis or silicosis subsequent to leaving his employment, the \u201cdate of the injury\u201d is the time of diagnosis. Id. at 379, 469 S.E.2d at 597 (citation omitted).\nIn the case before us, the Commission, without explanation, found as fact that plaintiffs average weekly wage should be calculated by looking to his last full year of employment with defendant-employer. It then concluded that such payment should \u201ccommenc[e] as of November 4, 1991,\u201d the date on which plaintiff was examined by the Commission\u2019s Advisory Medical Committee.\nWithout any findings regarding the \u201cfair and just\u201d method for calculating plaintiff\u2019s average weekly wage, we must assume that the Commission was attempting to rely upon the first method set forth in N.C.G.S. \u00a7 97-2(5). However, as previously discussed, that method requires looking at the plaintiff\u2019s employment immediately preceding diagnosis for calculating his average weekly wage. See Moore, 122 N.C. App. 375, 469 S.E.2d 594. Accordingly, we find that the Commission\u2019s findings are insufficient to support its conclusion that \u201cPlaintiff is entitled to receive weekly compensation at the rate of $319.38 per week for a period of 104 weeks.\u201d We therefore remand to the Commission the issue of calculation of plaintiff\u2019s average weekly wage and his resulting benefits.\nAffirmed in part, remanded in part.\nJudges HORTON and EDMUNDS concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "The Law Offices of Robin E. Hudson, by Robin E. Hudson and Samuel A. Scudder, for \u2018plaintiff-appellee.", "Teague, Campbell, Dennis & Gorham, L.L.P., by Thomas M. Clare, for defendant-appellant ITT Grinnell Industrial Piping Inc.", "Hedrick, Eatman, Gardner & Kincheloe, L.L.P, by Hatcher Kincheloe, Patrick D. Sarsfield, II, J.A. Gardner, III, and Andrew R. Ussery, for defendant-appellant Liberty Mutual Insurance Company.", "Cranfill, Sumner & Hartzog, L.L.P., by Gregory M. Kash, for defendant-appellee Cigna Insurance Company.", "Wallace and Graham, P.A., by Mona Lisa Wallace, for the North Carolina Academy of Trial Lawyers, amicus curiae.", "Johnston, Allison & Hord, P.A., by James W. Allison, for Carolinas AGC, Inc., amicus curiae.", "Parker, Poe, Adams & Bernstein, L.L.P, by Josephine H. Hicks, for North Carolina Citizens for Business and Industry, amicus curiae." ], "corrections": "", "head_matter": "JIMMIE CLARK, Employee-Plaintiff-Appellee v. ITT GRINNELL INDUSTRIAL PIPING, INCORPORATED, Employer-Defendant-Appellant, LIBERTY MUTUAL INSURANCE COMPANY, Carrier-Defendant-Appellant, CIGNA INSURANCE COMPANY, Carrier-Defendant-Appellant\nNo. COA99-246\n(Filed 29 December 2000)\n1. Workers\u2019 Compensation\u2014 asbestosis \u2014 sufficiency of evidence\nThe Industrial Commission did not err in a workers\u2019 compensation action by finding that plaintiff had asbestosis as defined by N.C.G.S. \u00a7 97-62 where the record contained the opinions of three doctors that plaintiff had lung conditions consistent with or characteristic of asbestos exposure.\n2. Workers\u2019 Compensation\u2014 asbestosis \u2014 last injurious exposure \u2014 sufficiency of evidence\nThere was sufficient evidence in a workers\u2019 compensation action to support the Industrial Commission\u2019s findings that plaintiff was injuriously exposed to the hazards of asbestos while employed by defendant-ITT. Plaintiff specifically testified that he wore asbestos gloves, that he would lay asbestos wrap over pipes, and that the railroad bottom of a furnace which carried asbestos would be rolled near his work position when he worked for defendant; another employee testified that he also wore asbestos gloves and that he would prepare a pipe for the furnace by putting an asbestos wrap on it; and the senior engineer for the plant, a witness for defendant, acknowledged that ITT \u201cprobably used some form of asbestos wrap\u201d before he arrived there. The Commission is the sole judge of the credibility of witnesses and the weight to be given their testimony.\n3. Workers\u2019 Compensation\u2014 issue raised in Industrial Commission review\nThe fact that a workers\u2019 compensation issue was not raised until it was reviewed by the Industrial Commission is of no consequence to the appellate review of the case. It is the Commission\u2019s duty to consider every aspect of the claim whether before the hearing officer or on appeal to the Commission.\n4. Workers\u2019 Compensation\u2014 asbestosis \u2014 dusty trades \u2014 compensation scheme\nThe Industrial Commission did not err in a workers\u2019 compensation asbestos case by applying N.C.G.S. \u00a7 97-60 through 61.7 even though there was no evidence that plaintiff was engaged or about to engage in an occupation that the Commission had found to expose employees to the hazards of asbestosis. N.C.G.S. \u00a7 97-60, which requires that potential and current employees be screened for asbestos-related disorders, is limited to persons engaged in or about to engage in an industry classified as a dusty trade, but the employer\u2019s status as a dusty trade does not impact the application of the examination and compensation scheme set forth in N.C.G.S. \u00a7 97-61.1 through 61.7.\n5. Workers\u2019 Compensation\u2014 asbestosis \u2014 removal from industry \u2014 not required\nAn employee suffering from an asbestos-related disease need not be removed from employment to be entitled to the 104 weeks of compensation set forth in N.C.G.S. \u00a7 97-61.6. The language of N.C.G.S. \u00a7 97-61.5(b), read alone, appears to require that an employee be removed from the industry, but construing that statute in pari materia with N.C.G.S. \u00a7 97-61.7 evidences the General Assembly\u2019s intent to allow an injured worker to remain in the harmful work environment and receive the 104 weeks of compensation.\n6. Constitutional Law\u2014 equal protection \u2014 workers\u2019 compensation \u2014 asbestosis\nN.C.G.S. \u00a7 97-60 and 61.1 through 61.7 do not violate defendants\u2019 rights to equal protection in that occupational diseases other than asbestosis or silicosis do not provide an automatic 104 weeks of compensation.\n7. Workers\u2019 Compensation\u2014 asbestosis \u2014 average weekly wage \u2014 calculation\nThe Industrial Commission\u2019s findings in a workers\u2019 compensation case were insufficient to support its conclusion regarding an asbestosis plaintiff\u2019s average weekly wage and the matter was remanded to the Industrial Commission. The Commission made no findings regarding the fair and just method of calculating the wage, so that it must be assumed that the Commission was relying upon the first method set out in N.C.G.S. \u00a7 97-2(5); that method requires looking at the plaintiff\u2019s employment immediately preceding diagnosis; and the Commission made the calculation by looking at the last full year of employment. There is no requirement of actual disablement in the asbestosis statutes.\nAppeal by defendants ITT Grinnell Industrial Piping, Inc. and Liberty Mutual Insurance Company from opinion and award entered 23 September 1998 by the North Carolina Industrial Commission. Heard in the Court of Appeals 18 November 1999.\nThe Law Offices of Robin E. Hudson, by Robin E. Hudson and Samuel A. Scudder, for \u2018plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Thomas M. Clare, for defendant-appellant ITT Grinnell Industrial Piping Inc.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P, by Hatcher Kincheloe, Patrick D. Sarsfield, II, J.A. Gardner, III, and Andrew R. Ussery, for defendant-appellant Liberty Mutual Insurance Company.\nCranfill, Sumner & Hartzog, L.L.P., by Gregory M. Kash, for defendant-appellee Cigna Insurance Company.\nWallace and Graham, P.A., by Mona Lisa Wallace, for the North Carolina Academy of Trial Lawyers, amicus curiae.\nJohnston, Allison & Hord, P.A., by James W. Allison, for Carolinas AGC, Inc., amicus curiae.\nParker, Poe, Adams & Bernstein, L.L.P, by Josephine H. Hicks, for North Carolina Citizens for Business and Industry, amicus curiae." }, "file_name": "0417-01", "first_page_order": 447, "last_page_order": 465 }