Pursuant to N.C.Gen.Stat. § 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's opinion and award entered 15 July 1997, awarded plaintiff-employee Jimmie Clark workers' compensation benefits for "Asbestos-related lung disease."
Plaintiff 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.
Plaintiff 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 "heavy wall piping" was fabricated. Almost all of plaintiff's work, until the end of his employment in February 1985, occurred in Bay Three.
Plaintiff 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.
As a pipe fitter, plaintiff testified that he wore "burning gloves" 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.
Plaintiff 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.
During plaintiff's 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 "fire bricks" on it. This railroad car bottom was rolled from the outside furnace to the inside of Bay Three, very close to plaintiff's 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.
The 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 plaintiff's 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.
Adolphus 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.
Michael 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 "related to  the protective coating" of the pipe. However,
The Commission found as fact:
Based on these findings of fact, the Commission concluded:
The Commission awarded plaintiff workers' 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.
Defendants argue that the Commission erred in finding that plaintiff had asbestosis, as defined in N.C.Gen.Stat. § 97-62 (1991). Under the North Carolina Workers' Compensation Act, asbestosis is defined as the "characteristic fibrotic condition of the lungs caused by the inhalation of asbestos dust." Id. Relying on certain medical literature and learned treatises, defendants contend that asbestosis is "a distinct medical condition with specific characteristics and risks" and is distinguishable from "pleural plaques" in the lungs.
Our Court's 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's findings of fact and (2) whether the findings support the Commission's 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:
Adams v. AVX Corp. 349 N.C. 676, 680-681, 509 S.E.2d 411, 413-14 (1998) (alteration in original) (internal citations omitted), reh'g denied, 350 N.C. 108, 532 S.E.2d 522 (1999).
Viewing the evidence in the light most favorable to plaintiff, the record before us contains competent evidence to support the Commission's 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's Advisory Medical Committee. According to Dr. Shanks' initial examination, plaintiff's x-rays indicated evidence of "pleural plaques and thickening." Dr. Shanks later opined that plaintiff had "fibrotic conditions of the lung  characteristic of asbestos exposure." Dr. Clinton D. Young (Dr. Young), a pulmonary specialist, examined plaintiff on 4 November 1991 and found that "[c]hest x-ray reveals definite pleural plaques quite consistent with asbestos exposure." In his deposition testimony, Dr. Young stated:
Defendants next challenge the sufficiency of the evidence supporting the Commission's findings that plaintiff was injuriously exposed to the "hazards" of asbestos while employed with defendant ITT Grinnell. The statute upon which defendants rely provides in part:
N.C.Gen.Stat. § 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.
In 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 plaintiff's exposure to toxic fumes while in the defendant-employer's employment was "mere speculation" because the levels of toxic substances in plaintiff's 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's 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:
Gay, 79 N.C.App. at 333-34, 339 S.E.2d at 496 (citation omitted). In applying Gay and McCuiston, we conclude that a claimant need not introduce scientific evidence to prove his exposure to asbestos for the purposes of N.C.G.S. § 97-57.
We 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' compensation asbestos claim against an insulation contractor and its insurance carrier. Like defendants' argument in our case, the defendants in Woodell contended that the evidence produced did not support the Commission's 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.
In 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 "probably used some form of asbestos wrap" before he arrived there in 1974. In addition, as discussed above, all three medical experts found that plaintiff's 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's finding that plaintiff was exposed to asbestos.
Defendants next contend the Commission erred by applying the provisions of N.C.Gen.Stat. §§ 97-60 through -61.7 (1991 & Cum.Supp.1998) in this case because 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. In response, plaintiff contends we should not reach this issue because "it 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." However, it is the Commission's 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) ("[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."). 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' argument.
We 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. § 97-60 (Cum.Supp.1998), which reads in pertinent part:
By its very terms, N.C.G.S. § 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. § 97-60 is limited to "persons engaged or about to engage in" employment with an industry classified as a "dusty trade."
However, N.C.G.S. § 97-60 stands alone in its application; the employer's status (or lack thereof) as a "dusty trade" does not impact the application of the examination and compensation scheme set forth in N.C.G.S. §§ 97-61.1 through -61.7. The language in those sections refers to "an employee [who] has asbestosis or silicosis," N.C.Gen.Stat. § 97-61.1 (Cum.Supp.1998), and speaks generally to "employers." Limiting the application of N.C.G.S. §§ 97-61.1 through -61.7 to employers designated as "dusty trades" 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.
Similarly, the language in N.C.G.S. § 97-60, "persons engaged or about to engage in," does not extend to N.C.G.S. §§ 97-61.1 through -61.7. The language of N.C.G.S. § 97-60 is more far-reaching than that used in N.C.G.S. §§ 97-61.1 through -61.7, in that N.C.G.S. § 97-60 requires screening of both current and prospective employees, whereas N.C.G.S. §§ 97-61.1 through -61.7 apply only to "employees."
We find support for our interpretation in N.C.Gen.Stat. § 97-72 (Cum.Supp.1998), which sets forth as one of the specific statutory purposes for creation of the advisory medical committee "to conduct examinations and make reports as required by G.S. 97-61.1 through 97-61.6." (Emphasis added.) The General Assembly's omission of N.C.G.S. § 97-60 further suggests the exclusivity of that section.
Accordingly, we disagree with defendants' arguments in this regard and hold that an employer need not be designated a "dusty trade" for N.C.G.S. §§ 97-61.1 through -61.7 to apply. Likewise, the "engaged or about to engage in" language of N.C.G.S. § 97-60 does not carry over to the screening and
However, defendants also contend that "most importantly, the payment of one hundred four weeks of compensation is reserved to those employees who are actually removed from their employment." (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).
Id. 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. § 97-61.5(b). For that reason,
Id. 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.
The general rule for recovery for individuals suffering from asbestosis or asbestos-related disorders is found at N.C.Gen.Stat. § 97-64 (1991), which provides:
The exceptions to which N.C.G.S. § 97-64 refers are found in N.C.G S. §§ 97-61.1 through -61.7. N.C.G.S. §§ 97-61.1 through -61.4 establish a series of examinations by the Commission's advisory medical committee of "an employee [who] has asbestosis or silicosis" and reports to be made from those examinations. Id. § 97-61.1. After the first examination and report, see id. §§ 97-61.1, -61.2 (1991), N.C.Gen.Stat. § 97-61.5(b) (1991) mandates the following:
(Emphasis added.) N.C.Gen.Stat. § 97-61.6 (1991) then provides means for recovering additional partial or total disability and compensation for resulting death due to asbestosis or silicosis.
Looking solely at the language of N.C.G.S. § 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. § 97-61.7 (1991) aids in resolving the situation posed by the Moore Court. N.C.G.S. § 97-61.7 reads in pertinent part:
(Emphasis added.) Construing the Workers' Compensation Act "liberally in favor of the injured worker," 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's intent to allow an injured plaintiff to remain in the harmful work environment and receive the 104 weeks of compensation. Accordingly, contrary to defendants' argument, removal from the industry is not required for an employee to receive the 104 weeks of compensation.
This automatic compensation scheme satisfies the legislative purpose of providing "compensation to those workers affected with asbestosis or silicosis, whose principal need is compensation." Young v. Whitehall Co., 229 N.C. 360, 365, 49 S.E.2d 797, 801 (1948).
Our 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. §§ 97-61.5(b) and -61.7 and stated:
61 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: "Thus, this Court has previously concluded that the Legislature intended compensation under G.S. § 97-61.5(b) as compensation for permanent damage to the employee's lungs due to asbestosis as well as for switching trades." (Emphasis added.)
Finally, we give deference to the Commission's 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's reasonable interpretation of a statute it administers). Our reading of the statutes is consistent with employers' and the Commission's long-standing practices of paying and awarding benefits, pursuant to N.C.G.S. § 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. § 97-31(24) and held that employer was not entitled to credit for payment of 104 weeks pursuant to N.C.G.S. § 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. § 97-61.5 and $4,000 for permanent lung damage pursuant to N.C.G.S. § 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
Accordingly, we hold that an employee need not be "removed" from employment to be entitled to the 104 weeks compensation set forth in N.C.G.S. § 97-61.5. Defendants' assignments of error on this issue are overruled.
Defendants next argue that if N.C.G.S. § 97-60 and §§ 97-61.1 through -61.7 do apply to the parties in this case where they contend "plaintiff 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" those provisions violates defendants' 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 "grossly under-inclusive."
Defendants' argument is, in essence, that the under-inclusive nature of the asbestosis statutes somehow "places a disproportionate and unconstitutional burden on Defendants." In response, plaintiff contends that defendants have no standing to raise this issue.
We note that a similar constitutional challenge was made by the defendant-employer in Jones v. Weyerhaeuser Co., ___ N.C.App. ___, 539 S.E.2d 380 (2000), where the defendant argued that N.C.G.S. § 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. § 97-61.5. Id., at ___, 539 S.E.2d at 382. ("[B]ecause [defendant's] business exposed its workers to asbestos, defendant is `burdened with additional liability for workers compensation benefits, with which similarly situated employers' (whose businesses did not expose their workers to asbestos or silica) are not so burdened."). 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's argument was "at best tenuous," id., defendants' argument in this case is untenable. Nonetheless, we upheld the constitutionality of N.C.G.S. § 97-61.5 in Jones and we rely upon the language set forth therein to now overrule defendants' constitutional challenge to N.C.G.S. §§ 97-60 and -61.1 through -61.7. This assignment of error is overruled.
Finally, defendants contend the Commission erred in calculating plaintiff's "average weekly wage" in awarding compensation. As to plaintiff's average weekly wage, the Commission found:
Based upon this finding and citing N.C.G.S. §§ 97-57 and 97-61.5, the Commission concluded:
Defendants contend plaintiff's compensation rate should have been calculated based upon the year of his "last injurious exposure," citing N.C.Gen.Stat. § 97-54 (1991), which defines "disablement." However, compensation under N.C.G.S. §§ 97-61.1
(Emphasis added.) "Average weekly wage" is defined as:
N.C.Gen.Stat. § 97-2(5) (Cum.Supp.1998). There is no requirement of actual disablement in the asbestosis statutes, and defendants' contention must fail. Nonetheless, we find the Commission's findings deficient on the issue of plaintiff's average weekly wage.
N.C.G.S. § 97-2(5) "`provides a hierarchy' of five methods of computing the average weekly wages." 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 "fair and just," it is the method to be employed. "The 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." Id. (citation omitted).
Our 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. § 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's average weekly wage earned during his last year of employment with the defendant-employer). The agreement was contingent on "a determination by the Commission as to whether the appropriate rate had been paid." Id. at 376, 469 S.E.2d at 595. The Commission adopted the deputy commissioner's opinion and award, which had set the plaintiff's 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).
On appeal to this Court, the defendants in Moore argued "that the average weekly wage governing compensation is that which the employee was receiving `before removal from the industry' within which silicosis was contracted." Id. at 377, 469 S.E.2d at 596. Conversely, the plaintiff contended that the "date of the injury," N.C.G.S. § 97-2(5), was the time of diagnosis, thus mandating that "compensation  be calculated based upon his wages `during the period of 52 weeks immediately preceding the date' of diagnosis," Moore, 122 N.C.App. at 377, 469 S.E.2d at 596. We agreed with the plaintiff's argument and held that, for purposes of calculating the average weekly wages (pursuant to the first method set out in N.C.G.S. § 97-2(5)) of a claimant who is diagnosed with asbestosis or silicosis subsequent to leaving his employment, the "date of the injury" is the time of diagnosis. Id. at 379, 469 S.E.2d at 597 (citation omitted).
In the case before us, the Commission, without explanation, found as fact that plaintiff's 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 "commenc[e] as of November 4, 1991," the date on which plaintiff was examined by the Commission's Advisory Medical Committee.
Without any findings regarding the "fair and just" method for calculating plaintiff's average weekly wage, we must assume
Affirmed in part, remanded in part.
HORTON and EDMUNDS, JJ., concur.