{
  "id": 9079953,
  "name": "CECIL S. ABERNATHY, Administratrix of the Estate of BAILEY L. ABERNATHY, Plaintiff v. SANDOZ CHEMICALS/CLARIANT CORPORATION, Employer, and THE TRAVELERS INSURANCE COMPANY, and LIBERTY MUTUAL INSURANCE COMPANY, Carriers, Defendants",
  "name_abbreviation": "Abernathy v. Sandoz Chemicals/Clariant Corp.",
  "decision_date": "2002-07-02",
  "docket_number": "No. COA01-834",
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    "judges": [
      "Judges TYSON and THOMAS concur."
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      "CECIL S. ABERNATHY, Administratrix of the Estate of BAILEY L. ABERNATHY, Plaintiff v. SANDOZ CHEMICALS/CLARIANT CORPORATION, Employer, and THE TRAVELERS INSURANCE COMPANY, and LIBERTY MUTUAL INSURANCE COMPANY, Carriers, Defendants"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nPlaintiff was employed by defendant Clariant Corporation (formerly Sandoz Chemicals Corporation) as a pipe fitter and insulator from 24 June 1968 until 30 June 1993. On 16 February 1996, plaintiff filed a claim alleging that he was suffering from asbestosis as a result of his exposure to asbestos in connection with his employment. Defendants denied the claim.\nBriefly summarized, the evidence tended to show that plaintiff testified he was exposed to asbestos while working in pipefitting, insulation, construction and maintenance work for defendant employer. Plaintiff testified that defendant employer used twenty different asbestos materials while he was employed there, and that he was exposed to asbestos \u201csomeway or other\u201d up until the day he quit. Plaintiff testified that he retired in 1993, at the age of 63, in part because he \u201cwasn\u2019t up to par\u201d and that he \u201ccouldn\u2019t keep up.\u201d Although Bobby Cleveland, plaintiff\u2019s supervisor for many years, testified that from 1990 until 1993, he had no knowledge that plaintiff was exposed to asbestos fibers, John Evans, a co-worker of plaintiff during the period, testified that he worked in defendant\u2019s salvage yard between 1991 and 1993, and that plaintiff often worked in the yard tearing off insulation and disposing of it in hazardous waste dumpsters. Evans stated that the conditions were very dusty.\nAfter a chest x-ray in early 1995, and a subsequent CT scan, which showed abnormalities, plaintiff was examined by Dr. Douglas G. Kelling, Jr., on 25 August 1995. Dr. Kelling diagnosed plaintiff as suffering with asbestosis. Defendant Liberty Mutual was the workers\u2019 compensation insurance carrier for defendant employer from 31 October 1980 until 31 October 1991; defendant Travelers Insurance Company was the carrier from 31 October 1991 until plaintiff\u2019s retirement on 30 June 1993.\nA deputy commissioner determined that plaintiff was injuriously exposed to the hazards of asbestos during his employment with defendant employer and that plaintiff has asbestosis. The deputy commissioner awarded plaintiff 104 weeks of compensation pursuant to G.S. \u00a7 97-61.5. The deputy commissioner further determined that defendant Travelers was on the risk at the time of plaintiff\u2019s last injurious exposure and is, therefore, liable for payment of the compensation.\nDefendants Clariant and Travelers appealed to the Full Commission. The Full Commission entered its opinion and award affirming the deputy commissioner. Defendants Clariant and Travelers appeal to this Court.\nI.\nDefendants Clariant and Travelers assign error to the Commission\u2019s determination that plaintiff is entitled to 104 weeks of compensation pursuant to G.S. \u00a7 97-61.5 because plaintiff had already retired at the time he was diagnosed with asbestosis and, therefore, was not \u201cremoved\u201d from the occupation giving rise to the hazard. At oral argument, the parties agreed that the issue has been settled by the decision of the North Carolina Supreme Court in Austin v. Continental General Tire, 354 N.C. 344, 553 S.E.2d 680 (2001), and that plaintiff does not qualify for benefits under the statutory scheme of G.S. \u00a7 97-61.5. In Austin, a majority of a divided panel of this Court held that the plaintiff was entitled to compensation under G.S. \u00a7 97-61.5, despite the fact that the plaintiff had already retired from the company prior to being diagnosed with asbestosis. Austin v. Continental General Tire, 141 N.C. App. 397, 540 S.E.2d 824 (2000). The majority held that it was not necessary for the plaintiff to be removed from his employment in order to qualify for 104 weeks of compensation under the statute. Judge Greene dissented, stating:\nThe unambiguous language of section 97-61.5(b) requires an employee to be \u201cremoved\u201d from his employment as a prerequisite to receiving the 104 weeks of compensation provided for in the statute .... An employee who is no longer employed at the time he is diagnosed with asbestosis, therefore, may not, under the plain language of section 97-61.5(b), proceed with a workers\u2019 compensation claim under this statute.\nId. at 415, 540 S.E.2d at 835. Judge Greene stated that G.S. \u00a7 97-64 provides the sole remedy for the plaintiffs asbestos related illness. In a per curiam opinion, the Supreme Court adopted Judge Greene\u2019s dissent and reversed, remanding the case to this Court for further remand to the Industrial Commission for proceedings consistent with the dissent. Austin v. Continental General Tire, 354 N.C. 344, 553 S.E.2d 680 (2001). Under G.S. \u00a7 97-64, \u201cthe legislature established the general rule that an employee becoming disabled by asbestosis or silicosis within the terms of the specific definition embodied in G.S. \u00a7 97-54 should be entitled to ordinary compensation measured by the general provisions of the Workmen\u2019s Compensation Act.\u201d Young v. Whitehall Co., 229 N.C. 360, 366, 49 S.E.2d 797, 801 (1948). Thus, we must reverse the Commission\u2019s award of compensation pursuant to G.S. \u00a7 97-61.5 and remand this case to the Industrial Commission for a determination as to whether plaintiff is entitled to compensation under G.S. \u00a7 97-64.\nII.\nDefendants Clariant and Travelers next contend the Industrial Commission erred in calculating plaintiff\u2019s average weekly wage. The deputy commissioner recited, in her opinion and award, the following stipulation: \u201c4. Plaintiffs average weekly wage was $611.49, yielding a compensation rate of $470.66.\u201d Defendants contend they did not stipulate to the average weekly wage and direct us to the pre-trial agreement, which states: \u201cThe plaintiff contends the average weekly wage was $611.49 which provides a compensation rate of $470.66.\u201d Plaintiff responds that defendants did not properly preserve the deputy commissioner\u2019s allegedly erroneous recitation for review by the Full Commission, thereby waiving their right to a review of the issue. Therefore, plaintiff contends, the issue is not properly before this Court for review.\nIndustrial Commission Rule 701(2) states:\nAfter receipt of notice of appeal, the Industrial Commission will supply to the appellant a Form 44 Application for Review upon which appellant must state the grounds for the appeal. The grounds must be stated in particularity, including the specific errors allegedly committed by the Commissioner or Deputy Commissioner and, when applicable, the pages in the transcript on which the alleged errors are recorded. Failure to state with particularity the grounds for appeal shall result in abandonment of such grounds....\nHowever, in Tucker v. Workable Company, 129 N.C. App. 695, 701, 501 S.E.2d 360, 365 (1998) (citations omitted), this Court held that \u201c[although Rule 701 provides that appellant must state with particularity the grounds for appeal,\u201d\n[t]his Court has held that when the matter is \u201cappealed\u201d to the full Commission pursuant to G.S. 97-85, it is the duty and responsibility of the full Commission to decide all of the matters in controversy between the parties.\nId. (citing Joyner v. Rocky Mount Mills, 92 N.C. App. 478, 374 S.E.2d 610 (1988)).\nIn the present case, although defendants did not state with particularity, in their Form 44 application for review by the Full Commission, their contention that the deputy commissioner\u2019s recitation of the stipulation was error, defendant did state: \u201cDeputy Commissioner Taylor erred in using Plaintiff\u2019s last full year of employment to calculate his average weekly wage.\u201d We hold the language was sufficient to preserve the issue of the proper calculation of plaintiff\u2019s average weekly wage for review.\nAs we have held in Section I of this opinion, though plaintiff does not qualify for compensation pursuant to G.S. \u00a7 97-61.5, he is nevertheless entitled to pursue a claim for compensation pursuant to G.S. \u00a7 97-64. That statute provides: \u201c[e]xcept 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.\u201d Disablement from asbestosis is defined as \u201cthe event of becoming actually incapacitated because of asbestosis ... to earn, in the same or any other employment, the wages which the employee was receiving at the time of his last injurious exposure to asbestosis ....\u201d N.C. Gen. Stat. \u00a7 97-54.\nIf, on remand, plaintiff establishes his disablement from asbestosis, and his entitlement to compensation pursuant to G.S. \u00a7 97-64, the Commission must determine his average weekly wage. This Court, in Moore v. Standard Mineral Company, 122 N.C. App. 375, 469 S.E.2d 594 (1996), held that the proper date for determining the average weekly wage of a plaintiff for the purpose of determining benefits under G.S. \u00a7 97-61.5 was as of the time of injury, which was deemed to be the date of diagnosis of silicosis or asbestosis. In Moore, however, the plaintiff was still earning a wage when he was diagnosed, albeit in other employment. The Court noted that, \u201c[i]n so holding,\u201d\nwe emphasize 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 (emphasis added). Indeed, Judge Greene acknowledged, in his dissent in Austin,\nthe \u201cremoval\u201d requirement of section 97-61.5(b) raises concerns regarding whether an employee who chooses to remove himself from employment prior to a diagnosis of asbestosis 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.\nAustin, 141 N.C. App. at 416, 540 S.E.2d at 836 (citing Moore, supra). Thus, the holding in Moore, that the average weekly wage is computed as of the date of diagnosis, is not applicable to the case before us since plaintiff in the present case was no longer employed in any capacity at the time he was diagnosed with asbestosis.\nUnder the general provisions of the Workers\u2019 Compensation Act, G.S. \u00a7 97-2(5) \u201cprovides a hierarchy\u201d of five methods for computing average weekly wages. McAninch v. Buncombe County Schools, 347 N.C. 126, 130, 489 S.E.2d 375, 378 (1997). The final method, contained in the second full paragraph of G.S. \u00a7 97-2(5) provides:\nBut 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). This final method \u201cmay not be used unless there has been a finding that unjust results would occur by using the previously enumerated methods.\u201d McAninch, 347 N.C. at 130, 489 S.E.2d at 378 (citation omitted).\nIn the present case, it would be obviously unfair to calculate plaintiffs benefits based on his income upon the date of diagnosis because he was no longer employed and was not earning an income. And, since the General Assembly has made no specific provision for determining compensation pursuant to G.S. \u00a7 97-64 when a former employee is diagnosed with asbestosis some time after his removal from the employment, the only statutory provision which may in fairness be used is the method recited above. Plaintiff testified that he retired from defendant company in 1993 because he \u201cwasn\u2019t up to par\u201d and \u201ccouldn\u2019t keep up\u201d in his job duties. He also stated he would have liked to keep working until he was 65 but his \u201chealth wasn\u2019t that good.\u201d Because plaintiff contracted asbestosis by working around asbestos for 25 years at defendant employer, the only fair method for determining his average weekly wage is using his latest full year of employment with defendant company, which appears to be the same figure the deputy commissioner and the Full Commission used in their calculations of plaintiff\u2019s average weekly wage. Accordingly, in remanding this case to the Industrial Commission for a determination of plaintiff\u2019s entitlement to compensation pursuant to G.S. \u00a7 97-64, we also instruct the Commission, if it determines plaintiff is entitled to compensation, to calculate plaintiff\u2019s average weekly wage in accord-anee with the method prescribed by the second full paragraph of G.S. \u00a7 97-2(5).\nIII.\nDefendants Clariant and Travelers also assign error to the Commission\u2019s determination that Travelers was the carrier on the risk at the time of plaintiffs last injurious exposure. In our review of an opinion and award of the Industrial Commission, findings of fact \u201care conclusive on appeal when supported by competent evidence, even though there be evidence that would support findings to the contrary.\u201d Jones v. Myrtle Desk Co., 264 N.C. 401, 402, 141 S.E.2d 632, 633 (1965).\nG.S. \u00a7 97-57 provides:\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 . . . (emphasis added).\nAs defendants conceded during oral argument, sufficient \u201ccompetent evidence\u201d was presented in the hearing to warrant the Commission\u2019s finding. Plaintiff stated that he worked around asbestos in one way or another up until the day he retired, and that he worked directly with asbestos approximately four days a week from 1991 to 1993. Another employee, John Evans, testified that plaintiff would be down at the salvage yard two or three times a week, \u201ctaking down pipe\u201d which contained asbestos, and doing other work. The salvage yard was very dusty with levels of asbestos present. Scientific evidence is not required to prove the causal connection between exposure to asbestos and the contracting of asbestosis. Clark v. ITT Grinnell Ind. Piping, Inc., 141 N.C. App. 417, 539 S.E.2d 369 (2000), remanded for reconsideration on other grounds, 354 N.C. 572, 558 S.E.2d 867 (2001); See also Gay v. J.P. Stevens & Co., 79 N.C. App. 324, 339 S.E.2d 490 (1986); McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983). Defendants\u2019 assignments of error related to these arguments are overruled, and the Commission\u2019s determination that Travelers \u201cwas on the risk at the time of plaintiff\u2019s last injurious exposure\u201d is affirmed. Therefore, upon remand, defendant Liberty Mutual Insurance Company shall be dismissed as a party to this action.\nAffirmed in part, reversed in part, and remanded.\nJudges TYSON and THOMAS concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Wallace and Graham, P.A., by Richard L. Huffman, for plaintiff-appellee.",
      "Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Neil P. Andrews, Angelina M. Maletto and Hatcher B. Kincheloe, for defendant-appellants Clariant Corporation and The Travelers Insurance Company.",
      "Alala Mullen Holland & Cooper, P.A., by H. Randolph Sumner and Jesse V. Bone, Jr., for defendant-appellee Liberty Mutual Insurance Company."
    ],
    "corrections": "",
    "head_matter": "CECIL S. ABERNATHY, Administratrix of the Estate of BAILEY L. ABERNATHY, Plaintiff v. SANDOZ CHEMICALS/CLARIANT CORPORATION, Employer, and THE TRAVELERS INSURANCE COMPANY, and LIBERTY MUTUAL INSURANCE COMPANY, Carriers, Defendants\nNo. COA01-834\n(Filed 2 July 2002)\n1. Workers\u2019 Compensation\u2014 retired employee \u2014 occupational disease \u2014 asbestosis\u2014entitlement to compensation\nThe Industrial Commission erred in a workers\u2019 compensation case by concluding that plaintiff retired employee is entitled to 104 weeks of compensation under N.C.G.S. \u00a7 97-61.5 for asbestosis that was diagnosed after he was no longer employed, and the case is remanded to the Industrial Commission for a determination as to whether plaintiff is entitled to compensation under N.C.G.S. \u00a7 97-64.\n2. Workers\u2019 Compensation\u2014 retired employee \u2014 average weekly wage\nThe Industrial Commission erred in a workers\u2019 compensation case by its calculation of plaintiff retired employee\u2019s average weekly wage based on the parties\u2019 alleged stipulation when the parties did not in fact stipulate to an amount, and the Industrial Commission must determine the average weekly wage in accordance with the second full paragraph of N.C.G.S. \u00a7 97-2(5) if on remand plaintiff establishes his disablement from asbestosis and his entitlement to compensation under N.C.G.S. \u00a7 97-64.\n3. Workers\u2019 Compensation\u2014 occupational disease-asbestosis \u2014 insurance carrier at time of risk\nThe Industrial Commission did not err in a workers\u2019 compensation case by its determination that the proper insurance carrier on the risk at the time of plaintiff retired employee\u2019s last injurious exposure to asbestos was the defendant carrier for defendant employer from 31 October 1991 until plaintiff\u2019s retirement on 30 June 1993, and on remand the previous company carrier for defendant employer from 31 October 1980 until 31 October 1991 shall be dismissed as a party to this action.\nAppeal by defendants Clariant Corporation and The Travelers Insurance Company from opinion and award entered 22 February 2001 by the North Carolina Industrial Commission. Heard in the Court of Appeals 28 March 2002.\nWallace and Graham, P.A., by Richard L. Huffman, for plaintiff-appellee.\nHedrick, Eatman, Gardner & Kincheloe, L.L.P., by Neil P. Andrews, Angelina M. Maletto and Hatcher B. Kincheloe, for defendant-appellants Clariant Corporation and The Travelers Insurance Company.\nAlala Mullen Holland & Cooper, P.A., by H. Randolph Sumner and Jesse V. Bone, Jr., for defendant-appellee Liberty Mutual Insurance Company."
  },
  "file_name": "0252-01",
  "first_page_order": 282,
  "last_page_order": 290
}
