Court: Court of Appeals of North Carolina; August 16, 2005; North Carolina; State Appellate Court
Eileen C. Payne, as the administratrix of Herby S. Payne's estate, initiated a workers' compensation claim for disability benefits due to asbestosis after Mr. Payne's death. The appeal involves defendants Ross and Witmer, Inc. and Travelers Insurance Company contesting the Industrial Commission's decision, which awarded total disability benefits prior to Mr. Payne's death and death benefits under N.C. Gen. Stat. 97-39. The court had to determine if the death benefits claim was appropriately before the Commission and if it was barred by N.C. Gen. Stat. 97-61.6. The court affirmed the Commission's authority to rule on the death benefits and declared that N.C. Gen. Stat. 97-61.6 violated the Equal Protection Clause, making the claim timely. The findings about Mr. Payne's work history were noted: he was employed at Charlotte Heating, Air Conditioning from 1960 to 1966, where he was exposed to asbestos without respiratory protection. He later worked for R. W. from 1972 to 1975, supervising projects that involved significant asbestos exposure. Despite subsequent jobs not involving significant asbestos, Mr. Payne developed back problems in 1989, leading to Social Security disability. The Commission's findings were deemed supported by competent evidence, affirming the award.
In January 1994, Mr. Payne consulted a pulmonologist due to worsening breathing issues, having previously smoked one to two packs of cigarettes daily until 1993. Pulmonary function tests revealed severe obstructive lung disease and emphysema. Subsequent examinations confirmed diagnoses of emphysema, asbestosis, and pleural plaques linked to asbestos exposure. Two NIOSH-certified "B readers" identified asbestosis in Mr. Payne, while a third acknowledged pulmonary abnormalities but concluded asbestos exposure likely did not contribute to his impairment. On February 1996, Mr. Payne filed for total disability benefits for asbestosis, with a hearing held on May 3, 2000. Mr. Payne died on October 16, 2000, after which the deputy commissioner kept the record open until September 15, 2001. On November 21, 2001, the deputy commissioner ruled against death benefits, stating that Mr. Payne did not contract asbestosis and had no disability from asbestos exposure, citing N.C. Gen. Stat. 97-61.6. Conversely, on July 14, 2003, the Full Commission found that Mr. Payne had asbestosis, which caused his total disability and contributed to his death, awarding total disability compensation and death benefits under N.C. Gen. Stat. 97-39. Defendants, R. W. and Travelers, appealed, arguing the issue of death benefits was not properly before the Commission due to procedural concerns regarding the filing of an amended Form 18B by Mrs. Payne, the administratrix of his estate. The Full Commission determined the amended Form 18B allowed for consideration of death benefits, and the defendants failed to provide authority to dispute this. Although the defendants asserted they were not given a fair chance to present evidence regarding death benefits, the record indicated they had the opportunity to question the plaintiff's expert about Mr. Payne's death and that the amended claim was filed before the deputy commissioner's opinion was issued.
Plaintiff intended to pursue death benefits following the death of Mr. Payne, but defendants did not request an extension from the deputy commissioner to complete the record. Instead, they maintained that the death benefits issue was not properly before the Commission. After the deputy commissioner declined to address the matter, plaintiff's Form 44 "Application for Review" contested this decision, emphasizing that the death certificate was already part of the evidence and that death benefits were explicitly claimed in an Amended I.C. Form 18B. The document cites established legal principles, stating that the full Commission has a duty to resolve all controversies, even those not addressed by the deputy commissioner (Crump v. Independence Nissan). Upon appealing to the full Commission, the plaintiff was entitled to have the death benefits issue addressed. Defendants had the choice to either stick with their argument that the issue was improperly before the Commission or to request the opportunity to present evidence on death benefits. The Commission has the authority to receive additional evidence when reviewing a deputy commissioner's award (Cummins v. BCCI Constr. Enters). If the Commission found the existing record insufficient, it was required to hold a hearing or remand the case. However, defendants did not seek to present further evidence, request a remand, or ask for an evidentiary hearing. Their brief to the Full Commission only reiterated that the death benefits issue was improperly before them due to Mr. Payne's death and asserted that the plaintiff's evidence was inadequate, without suggesting that additional evidence should be considered.
Defendants were aware that death benefits were at issue and had the opportunity to present evidence but failed to do so, as they did not request to introduce additional evidence. This aligns with case law indicating that a party is not denied the opportunity to be heard if they have access to relevant records and do not act to utilize them. The court found that defendants did not demonstrate a lack of notice or an opportunity to be heard regarding death benefits.
Defendants further contended that the claim for death benefits was barred by N.C. Gen. Stat. 97-61.6, while the plaintiff argued that the statute is unconstitutional as it violates the Equal Protection Clause. The Full Commission awarded death benefits without addressing the statute's constitutionality, yet both parties acknowledged that if the statute applies, the plaintiff would be barred from seeking benefits.
N.C. Gen. Stat. 97-61.6 specifies a time frame for claims related to death from asbestosis or silicosis, which differs from the provisions for other occupational diseases. For asbestosis or silicosis, claims must be made if death occurs within two years of last exposure or within 350 weeks if the deceased was receiving compensation for disablement. Conversely, claims for other occupational diseases allow for death benefits if the death occurs within six years of a compensable injury or two years post-disability determination.
The plaintiff argued that this statute unfairly restricts victims of asbestosis and silicosis, forcing them to file claims before diagnosis or death, which is not required for other occupational diseases. The plaintiff claimed that there is no rational basis for the differing time frames for filing claims, as established in prior case law.
N.C. Gen. Stat. 97-63 (1991) distinguishes between employees with asbestosis and silicosis and those with other occupational diseases, raising questions of equal protection. The statute requires a minimum of two years of exposure to asbestos or silica dust in North Carolina, with no part of that exposure occurring more than ten years before the last exposure. In the Walters case, the Commission denied a plaintiff's claim for asbestosis benefits due to insufficient exposure time, prompting an examination under the Equal Protection Clause. The court identified that asbestosis is an enumerated occupational disease, placing affected individuals in a similar situation to those with other occupational diseases.
The court evaluated whether the differential treatment under N.C. Gen. Stat. 97-63 served a legitimate state interest. Defendants argued it prevented forum shopping and protected employers from unwarranted claims. However, the court found the statute underinclusive, as it did not encompass other serious occupational diseases like byssinosis, lacking justification for the differential treatment. Consequently, the court ruled that N.C. Gen. Stat. 97-63's constitutionality was unsustainable, necessitating a remand to the Commission. This case emphasizes the equal protection principle that individuals in similar situations must be treated alike, referencing both the Fourteenth Amendment and North Carolina's Constitution. The ongoing inquiry is whether the distinction between asbestosis/silicosis and other latent occupational diseases has a rational basis in serving legitimate state interests, with defendants now asserting that N.C. Gen. Stat. 97-61.6 functions as a statute of repose to promote finality.
The State's justification for imposing a harsher statute of repose for asbestosis claims compared to other latent occupational diseases is questioned, as no reasonable basis for this distinction has been presented by the defendants. The equal protection clauses allow for classification if justified, but the statute in question is deemed "grossly underinclusive," failing to encompass all similarly situated individuals. The court cites a previous case to highlight that diseases like asbestosis and silicosis develop over time, complicating the determination of causation, similar to other occupational diseases. The statute does not account for other asbestos-related conditions, such as mesothelioma, which further illustrates its inadequacy. It imposes an additional burden on claimants with asbestosis or silicosis that is not placed on those with other occupational diseases, raising equal protection concerns. The court concludes that the lack of justification for the differential treatment violates the Equal Protection Clause under the rational basis test, affirming that the plaintiff's claim for death benefits was timely filed under the appropriate statute for other occupational diseases.
Defendants R. W. and Travelers challenge the Commission's finding that Mr. Payne's asbestosis significantly contributed to his disability and death, arguing insufficient evidentiary support. The review of the Commission's decisions is limited to whether its findings of fact are backed by competent evidence and if its legal conclusions arise from those findings. If any competent evidence supports the findings, they are deemed conclusive on appeal, regardless of contrary evidence. The evidence must be viewed favorably for the plaintiff, allowing for reasonable inferences.
Defendants assert that the evidence fails to demonstrate that Mr. Payne had asbestosis as defined by N.C. Gen. Stat. 97-62, which describes asbestosis as a lung condition caused by asbestos dust inhalation. They reference a dissenting opinion from Commissioner Sellers, who applies the American Thoracic Society's definition of asbestosis to the case but did not provide expert testimony to establish that standard's relevance to Mr. Payne's condition. The Court emphasizes that diagnosing asbestosis requires expert testimony due to the complex medical questions involved. Furthermore, the argument against the Commission's determination lacks evidentiary support, as the Commission is not tasked with providing expert opinions.
Previous case law indicates that relying solely on medical literature, such as statements from the American Thoracic Society, is insufficient to overturn the Commission's findings when it has thoroughly considered the medical evidence and expert testimony. The Court concluded that the Commission's extensive findings were supported by the medical evidence presented, affirming the conclusive nature of its findings on appeal.
The Commission reviewed extensive medical evidence regarding Mr. Payne's health, including Dr. Proctor's diagnosis of emphysema and asbestosis related to asbestos exposure. Dr. Dula and Dr. Bernstein, both NIOSH certified B-readers, supported the diagnosis with observations that Mr. Payne's chest films and x-rays were consistent with asbestosis and pleural disease from long-term asbestos exposure. Although Dr. Alexander, another certified B-reader, attributed pulmonary impairment solely to emphysema, the Commission favored the conclusions of Dr. Proctor, Dula, and Bernstein, citing Alexander's lack of personal examination and specialization in pulmonology as factors diminishing his credibility.
The appellate court's role is limited to verifying the existence of supporting evidence for the Commission's findings, rather than reassessing the evidence's weight. The Commission's conclusion that Mr. Payne suffered from asbestosis is thus binding on appeal. The defendants contested the Commission's finding that asbestosis caused or significantly contributed to Mr. Payne's disability and death, claiming a lack of competent evidence. However, Dr. Proctor testified with medical certainty that asbestosis significantly contributed to Mr. Payne's death and impaired his daily activities and employment capabilities. Despite the defendants' argument that Mr. Payne's earlier disability stemmed from a back injury, testimony indicated that this was no longer the case. The Full Commission determined the credibility of this testimony.
Finally, the defendants challenged the finding that Mr. Payne's last injurious exposure to asbestos occurred during his employment with Ross, Witmer. Under N.C. Gen. Stat. 97-57, liability falls on the employer where the employee last faced injurious exposure, requiring at least 30 working days of exposure within seven months. The defendants argued that no scientific evidence was presented to demonstrate the presence of asbestosis in the work environment at Ross, Witmer, or any other employer.
The Court reaffirmed that expert testimony is not required in certain cases, as established in Vaughn v. Insulating Servs. and Abernathy v. Sandoz Chems./Clariant Corp., regarding asbestos exposure under N.C. Gen. Stat. § 97-57. In Abernathy, the Court concluded that competent evidence—including the plaintiff's testimony about regular asbestos exposure and corroborating accounts from co-workers—was sufficient to establish liability. Similarly, in the current case, Mr. Payne provided evidence of his exposure to asbestos while working on an apartment complex project, detailing direct involvement with asbestos materials and the resulting dust exposure. His supervisor confirmed that Mr. Payne would have encountered asbestos whenever present on the job site. This evidence was deemed adequate to support the Commission's conclusion that Mr. Payne's last injurious exposure occurred during his employment, leading to the affirmation of the Commission's decision to award total disability and death benefits to the plaintiff. The decision was concurred by Judges TIMMONS-GOODSON and McCULLOUGH. Additionally, the amended Form 18B indicated a link between the plaintiff's asbestosis and the decedent's death. The defendants' expert, Dr. Michael Alexander, was not in a position to challenge the diagnosis provided by the plaintiff's expert, Dr. Stephen D. Proctor.
