{
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  "name": "MATTIE B. LONG, Widow of THOMAS LONG, SR., Deceased Employee, Plaintiff-Appellant v. NORTH CAROLINA FINISHING COMPANY, Employer, SELF-INSURED, Defendant-Appellee",
  "name_abbreviation": "Long v. North Carolina Finishing Co.",
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    "judges": [
      "Judges Webb and Johnson concur."
    ],
    "parties": [
      "MATTIE B. LONG, Widow of THOMAS LONG, SR., Deceased Employee, Plaintiff-Appellant v. NORTH CAROLINA FINISHING COMPANY, Employer, SELF-INSURED, Defendant-Appellee"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nPlaintiff contends the Commission erred in applying the provisions of N.C. Gen. Stat. 97-58(a) in effect at the time of Long\u2019s disablement, as opposed to the amended provisions of the statute which became effective 1 July 1981. We are constrained to agree.\nThe legislature expressly provided that the amended version of N.C. Gen. Stat. 97-58(a) would become effective 1 July 1981 and apply \u201cto claims filed with the Industrial Commission on and after that date.\u201d 1981 N.C. Sess. Laws ch. 734, s. 2. Plaintiffs claim was filed on 8 January 1982. Accordingly, the Commission erred in not applying the amended version of N.C. Gen. Stat. 97-58(a).\nDefendant argues that the Commission correctly applied the law in effect at the time of Long\u2019s disablement, since to do otherwise would be an impermissible retrospective application of the law. A similar contention was rejected in Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979).\nIn Booker an employee contracted serum hepatitis sometime during the first six months of 1971. On 3 January 1974 he died, and on 16 December 1974 his dependents filed claims with the Industrial Commission. The Commission determined that his death was the result of an \u201coccupational disease\u201d as defined by N.C. Gen. Stat. 97-53(13) as it existed at the time of his death, and it awarded his dependents benefits.\nThis Court reversed on the grounds that the law in effect at the time the employee contracted the disease governed his dependents\u2019 claims for benefits and that at that time serum hepatitis was not a compensable injury under the Workers\u2019 Compensation Act because it was not expressly listed in the schedule of compensable diseases found in N.C. Gen. Stat. 97-53 and did not fit within the \u201ccatchall\u201d definition of an occupational disease set out in N.C. Gen. Stat. 97-53(13). Booker v. Duke Medical Center, 32 N.C. App. 185, 231 S.E. 2d 187 (1977). In reversing this Court, the Supreme Court stated:\nSince the dependents\u2019 right to compensation under G.S. 97-38 does not arise until the employee\u2019s death, the date of his death logically governs which statute applies. Contrary to the intimation of the Court of Appeals this construction of G.S. 97-53(13) does not make the statute unconstitutional. A statute is not rendered unconstitutionally retroactive merely because it operates on facts which were in existence prior to its enactment. The proper question for consideration is whether the act as applied will interfere with rights which had vested or liabilities which had accrued at the time it took effect. . . . This is the test which has consistently been applied in construing amendments to our Workmen\u2019s Compensation Act. [Citations omitted.]\nBooker, 297 N.C. at 467, 256 S.E. 2d at 195.\nAs in Booker, the amended version of N.C. Gen. Stat. 97-58(a) was in effect at the time plaintiffs right to compensation arose, viz, the time of Long\u2019s death. For the reasons stated in Booker, we reject defendant\u2019s contention that the amended version of N.C. Gen. Stat. 97-58(a) could not constitutionally apply to plaintiffs claim.\nThe current version of N.C. Gen. Stat. 97-58(a), which the Commission should apply on remand, provides in pertinent part that \u201can employer shall not be liable for any compensation for asbestosis unless disablement or death results within ten years after the last exposure to that disease. . . .\u201d (Emphasis supplied.) Plaintiff contends that the above requirement is satisfied if the Commission finds that Long was exposed to asbestos dust within ten years of his disablement. However, the Deputy Commissioner interpreted this provision to require a showing that Long \u201cwas last injuriously exposed to the hazards of asbestos\u201d as defined in N.C. Gen. Stat. 97-57 within ten years of his disablement. (Emphasis supplied.) Similarly, the Commission interpreted an earlier version of N.C. Gen. Stat. 97-58(a), which in pertinent part limits an employer\u2019s liability for asbestosis to instances in which \u201cdisablement or death results within two years after the last exposure to such disease,\u201d to require a demonstration that Long \u201cwas injuriously exposed to the hazards of asbestos dust within the time allowed by statute.\u201d (Emphasis supplied.) Since it is apparent from the Deputy Commissioner\u2019s findings of fact that on remand the Commission will be required to apply the requirement that plaintiff demonstrate an \u201cexposure to [asbestosis]\u201d within ten years of Long\u2019s disablement or death, we address plaintiffs contention.\nDefendant argues that N.C. Gen. Stat. 97-58(a) should be interpreted to require proof of an injurious exposure as defined in N.C. Gen. Stat. 97-57 within ten years of death or disablement. We disagree.\nN.C. Gen. Stat. 97-57, in pertinent part, 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 supplied.]\nApplication of the above definition of an \u201cinjurious exposure\u201d to the hazards of asbestosis is limited, by the express language of the statute, to determining liability under N.C. Gen. Stat. 97-57.\nFurther, logically there is no reason to read the exposure requirements of N.C. Gen. Stat. 97-57 into N.C. Gen. Stat. 97-58(a). The purpose of N.C. Gen. Stat. 97-57 is to determine whether there has been sufficient exposure to the hazards of asbestosis during a particular period of employment to hold the employer during that period liable. By contrast, the purpose of N.C. Gen. Stat. 97-58(a) is to limit the time in which an employer is liable for a compensable exposure.\nIt is well-established that the Workers\u2019 Compensation Act \u201cshould be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow, and strict construction.\u201d Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E. 2d 874, 882 (1968). See also Watkins v. City of Wilmington, 290 N.C. 276, 282, 225 S.E. 2d 577, 581 (1976); Petty v. Transport, Inc., 276 N.C. 417, 426, 173 S.E. 2d 321, 328 (1970). We thus decline to read the \u201cinjurious\u201d exposure requirements of N.C. Gen. Stat. 97-57 into N.C. Gen. Stat. 97-58(a). If the legislature desires that N.C. Gen. Stat. 97-58(a) be so interpreted, it should expressly so provide.\nDefendant\u2019s cross assignments of error question whether the evidence is sufficient to support certain findings of fact made by the Deputy Commissioner. The Commission did not expressly adopt the Deputy Commissioner\u2019s findings. Since it applied N.C. Gen. Stat. 97-58 as it existed at the time of Long\u2019s disablement, it may have considered these findings irrelevant. On remand the Commission should consider defendant\u2019s contention that certain findings made by the Deputy Commissioner are not supported by the evidence.\nFor the reasons stated, the Opinion and Award of the Industrial Commission is reversed, and the cause is remanded for a determination of plaintiffs claim not inconsistent with this opinion.\nReversed and remanded.\nJudges Webb and Johnson concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Ferguson, Stein, Watt, Wallas & Adkins, P.A., by Thomas M. Stern, for plaintiff appellant.",
      "Hedrick, Eatman, Gardner & Kincheloe, by J. A. Gardner, III, and Mika Z. Savir, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "MATTIE B. LONG, Widow of THOMAS LONG, SR., Deceased Employee, Plaintiff-Appellant v. NORTH CAROLINA FINISHING COMPANY, Employer, SELF-INSURED, Defendant-Appellee\nNo. 8610IC146\n(Filed 19 August 1986)\n1. Master and Servant \u00a7 68.1\u2014 asbestosis \u2014application of amended statute\nThe Industrial Commission erred in an asbestosis case by applying the provisions of N.C.G.S. \u00a7 97-58(a), which limited liability to instances in which disablement or death resulted within two years of the last exposure, rather than the amended provisions of the statute which became effective 1 July 1981 and which limited liability to ten years from the last exposure, where plaintiff died on 11 December 1981 and the claim was filed on 8 January 1982. The amended version of the statute was in effect at the time of plaintiffs death, the time when the right to compensation arose.\n2. Master and Servant \u00a7 68.1\u2014 asbestosis \u2014 injurious exposure \u2014not required under N.C.G.S. \u00a7 97-58(a)\nN.C.G.S. \u00a7 97-58(a) does not require proof of an injurious exposure as defined in N.C.G.S. \u00a7 97-57 because the N.C.G.S. \u00a7 97-57 definition is limited by the express language of the statute to determining liability under that statute, and because the purpose of N.C.G.S. \u00a7 97-57 is to determine whether there has been sufficient exposure to the hazards of asbestosis to hold the employer liable, while the purpose of N.C.G.S. \u00a7 97-58(a) is to limit the time in which the employer is liable.\nAppeals by plaintiff and defendant from Opinion and Award of the North Carolina Industrial Commission entered 17 October 1985. Heard in the Court of Appeals 5 June 1986.\nOn 8 January 1982 plaintiff filed this claim for workers\u2019 compensation benefits alleging that her husband, Thomas Long, Sr. [hereafter Long], was disabled and died from asbestosis which he contracted as a result of exposure to asbestos dust while working for defendant. Based on the evidence presented at a hearing held solely to determine whether plaintiffs claim met the exposure requirements of N.C. Gen. Stats. 97-57, 97-58 and 97-63, the Deputy Commissioner made the following pertinent findings of fact:\n1. . . . Thomas Long died 11 December 1981.\n4. During the . . . period from 1960 to 1966, the deceased spent approximately 25% of his time working with asbestos and being exposed to its dust. Throughout this period, he was exposed to the hazards of asbestos for as much as 30 working days, or parts thereof, within seven consecutive calendar months.\n5. . . . During [the period beginning in 1969 and ending 17 January 1972], the deceased was exposed to the dust of asbestos, but he was not exposed to the hazards of asbestos for as much as 30 working days, or parts thereof, within seven consecutive calendar months.\n6. . . . The deceased was exposed to asbestos dust but not for as much as 30 working days, or parts thereof, within seven consecutive calendar months during the period from 1972 until the deceased\u2019s last day of work on 10 February 1981.\nBased on the above findings of fact, the Deputy Commissioner made the following conclusions of law:\n1. During the period from 196[0] to 1966, the deceased was injuriously exposed to the hazards of asbestosis, but there was no injurious exposure after that period. G.S. 97-57. [Emphasis supplied.]\n2. The deceased was exposed to the inhalation of asbestos dust in employment for a period of not less than two years in this State and no part of the two year period was more than 10 years prior to his last exposure to asbestos. G.S. 97-63.\n3. (However, the alleged disablement of deceased from exposure to asbestos particles occurred more than ten years after the deceased was last injuriously exposed to the hazards of asbestosis and, therefore, more than ten years after his last exposure to the disease of asbestosis. Hence, defendant is not liable for any compensation for alleged asbestosis under G.S. 97-58, the 1981 amendment of which is controlling in this case.)\nPlaintiff appealed to the Full Commission. The Commission rejected the Deputy Commissioner\u2019s application of the amended version of N.C. Gen. Stat. 97-58(a), which was in effect at the time of Long\u2019s death, and applied N.C. Gen. Stat. 97-58(a) as it existed on 10 February 1981, the date of Long\u2019s disablement.\nThe amended version of N.C. Gen. Stat. 97-58(a), effective 1 July 1981, provides, in pertinent part, that \u201can employer shall not be liable for any compensation for asbestosis unless disablement or death results within 10 years after the last exposure to that disease.\u201d (Emphasis supplied.) The earlier version of N.C. Gen. Stat. 97-58(a), in pertinent part, limits an employer\u2019s liability for asbestosis to instances in which \u201cdisablement or death results within two years after the last exposure to such disease.\u201d (Emphasis supplied.)\nThe Commission found no evidence that Long had been \u201cinjuriously exposed to the hazards of asbestos dust\u201d within two years of disablement and denied plaintiffs claim for benefits pursuant to the pre-July 1981 version of N.C. Gen. Stat. 97-58(a).\nFrom the findings and conclusions of the Commission, plaintiff and defendant appealed.\nFerguson, Stein, Watt, Wallas & Adkins, P.A., by Thomas M. Stern, for plaintiff appellant.\nHedrick, Eatman, Gardner & Kincheloe, by J. A. Gardner, III, and Mika Z. Savir, for defendant appellee."
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