*********** Upon review of the competent evidence of record with reference to the errors assigned, and finding no good grounds to receive further evidence or to rehear the parties or their representatives, the Full Commission upon reconsideration of the evidence reverses the Opinion and Award of the Deputy Commissioner.
*********** The Full Commission finds as fact and concludes as matters of law the following, which were entered into by the parties at the hearing before the Deputy Commissioner and in a Pre-Trial Agreement as:
STIPULATIONS 1. The Industrial Commission has jurisdiction over the subject matter of this case, and the parties were subject to and bound by the provisions of the North Carolina Worker's Compensation Act at all relevant times.
2. Defendant was a duly qualified self-insured.
3. An employee-employer relationship existed between the parties at all relevant times. Plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from 12 April 1962 to 30 November 1995.
4. Plaintiff was last injuriously exposed to asbestos during plaintiff's employment with defendant. Plaintiff was exposed to asbestos for 30 days within a seven-month period, as is required by N.C. Gen. Stat. § 97-57.
5. Defendant manufactures paper and paper products such as paper for crafts, paper bags, boxes and pulp for baby diapers. The approximate size of defendant's plant in Plymouth, North Carolina, is of a mile long. The entire facility is built on approximately 350 acres and encompasses about 20 different buildings. The newest building was built in the 1960's, and the vast majority of the insulation used in the original construction of the buildings was asbestos containing. There are steam-producing boilers used at the facility. In addition, there are hundreds of miles of steam pipes that were covered with asbestos insulation. The heat coming off the steam pipes is used, among other things, to dry the wet pulp/paper.
6. Plaintiff worked for defendant from 1962 until he retired in 1995. During the course of his employment, he worked in the power department from 1963 to 1965, in the storeroom from 1965 to 1977, and as a raw material coordinator from 1977 to 1995. In the power department, plaintiff was exposed to asbestos dust from the repairs being done on the pipes and asbestos insulation in his area. During clean ups, air hoses were used to blow the dust off the floor which would create dusty clouds. While employed in the storeroom, plaintiff directly handled asbestos sheet packing and cut gaskets that were made of asbestos. While working as a raw materials coordinator, plaintiff went through many areas of the plant and walked through areas where asbestos insulation was removed from pipes during repairs. Plaintiff was not provided with any respiratory protection.
7. Plaintiff's income 52 weeks prior to his retirement in 1995 was $53,652.20, which is sufficient to justify the maximum compensation rate for that year of $478.00 per week.
8. Plaintiff contends that he is entitled to an award of 10% penalty pursuant to the provisions of N. G. Gen. Stat. § 97-12, and defendant agreed that should the claim be found compensable, defendant agreed by compromise to pay an amount of 5% of all compensation, exclusive of medical compensation, as an award of penalty pursuant thereto.
9. The parties stipulated that should plaintiff be awarded compensation, the undersigned may include language removing plaintiff from further exposure pursuant to N.C. Gen. Stat. § 97-62-5(b).
10. The parties also stipulated that should the undersigned determine N.C. Gen. Stat. §§ 97-60 through 97-61.7 to be unconstitutional, additional testimony could be offered by the parties on the issues of loss of wage earning capacity and/or disability.
11. On the issue of additional monetary benefits, plaintiff is entitled to undergo the additional panel examinations as is by law required. Upon completion of the additional examinations, should the parties be unable to agree on what additional compensation, if any is due, the parties may request a hearing before the Commission on this matter.
12. The parties submitted for consideration by the undersigned the medical records and reports of plaintiff by the following physicians:
1. Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University.
2. Dr. Fred Dula of Piedmont Radiology.
3. Dr. James Johnson of Piedmont Radiology.
4. Dr. Phillip Lucas.
5. Dr. John W. Wu.
6. Dr. Albert Curseen.
7. Dr. Ralph E. Whatley.
Subsequent to the hearing before the Deputy Commissioner, the transcripts from the depositions of the following medical experts were submitted for review:
1. Dr. Fred Dula [March 6, 2000 and July 20, 2000]
2. Dr. Albert Curseen [June 23, 2000 and July 28, 2000]
3. Dr. John Wu [August 15, 2000]
4. Dr. Phillip Lucas [August 22, 2000]
5. Dr. James Johnson [January 24, 2000 and August 24, 2000]
6. Dr. Ralph Whatley [August 24, 2000]
7. Dr. Allen Hayes [February 17, 2000 and November 27, 2000]
*********** Based upon all of the competent evidence of record, the Full Commission makes the following:
FINDINGS OF FACT 1. This matter came on for hearing before the Commission after plaintiff's first examination and medical reports establishing that he has asbestosis. Plaintiff retired from employment with defendant on 30 November 1995, prior to the date of his diagnosis of asbestosis on 29 May 1998 by Dr. Dennis Darcey.
2. Plaintiff has contracted asbestosis and asbestosis-related pleural disease as a result of his injurious exposure to the hazards of asbestos while employed by defendant, Weyerhaeuser Company.
3. Based upon the description of plaintiff's job duties while employed by defendant and other evidence submitted, the Full Commission finds as fact that plaintiff was exposed to asbestos containing materials on a regular basis for more than 30 working days or parts thereof inside of seven consecutive months from 12 April 1962 to 30 November 1995.
4. Plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from 12 April 1962 to 30 November 1995.
5. Dr. Dennis Darcey examined plaintiff on 29 May 1998. He reviewed the 4 September 1997 chest x-ray which had been interpreted by Dr. Fred Dula and noted "parenchymal abnormalities . . . including irregular opacities, shape and size t/t in the middle and lower lung zones bilaterally with a 1/2 profusion." Dr. Darcey also examined a chest CT taken on 4 September 1997 which showed "mild diffuse type pleural thickening and interstitial changes consistent with mild asbestosis." Dr. Darcey concluded that plaintiff "appears to have some exposure to asbestos in the past although the history does not suggest high level of exposure. However, there has been enough latency to develop asbestosis since his first exposures extend back to 1963. The pulmonary function studies reveal changes consistent with chronic obstructive lung disease secondary to his cigarette smoking. . . . the ILO chest x-ray B-read and high resolution CT evaluation do show pleural thickening bilaterally consistent with asbestos exposure and nonspecific interstitial changes consistent with smoking and asbestosis with a profusion on the ILO B-read of 1/2."
6. On 4 September 1997, Dr. Fred Dula examined the films taken on that date and found that the CT scan showed "bilateral diffuse-type pleural thickening, fairly mild. There are interstitial changes in both lungs, including short thickened interlobar lines extending to the pleural surfaces along the non-dependent portions of both lung bases." Dr. Dula concluded that the CT scan demonstrated "interstitial and mild pleural changes . . . consistent with mild asbestosis in the appropriate clinical situation." Dr. Dula reviewed the chest x-rays from 4 September 1997 and found "interstitial changes in the lower halves of both lungs, consisting of irregular linear opacities. There is mild bilateral pleural thickening." He concluded that plaintiff has "interstitial and pleural changes which would be consistent with asbestosis in the appropriate clinical situation."
7. Dr. James Johnson examined a high resolution noncontrast chest CT taken of plaintiff on 20 December 1999 and found "mild interstitial changes. Parenchymal scarring in the right middle lobe. I see no pleural plaque or calcification to indicate CT evidence of asbestos exposure."
8. Dr. Phillip Lucas examined the chest radiographs dated 20 December 1999 and noted that "irregular interstitial opacities are observed in both lower lung zones, the size and shape of which are classified as t/t and the profusion is 1/0. He opined that the films showed "bilateral interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate exposure history and latent period."
9. Dr. John W. Wu examined the 1997 chest CT and found "mild scarring at both bases is nonspecific but may be suggestive of very early changes related to asbestosis."
10. On 31 August 1999, Dr. Albert Curseen, the Advisory Medical Panel Physician, examined plaintiff, including a pulmonary function analysis. Dr. Curseen concluded that "the preponderance of medical evidence substantiates the diagnosis of asbestosis," and he classified plaintiff as a "Class II Level of AMA Respiratory Impairment."
11. Dr. Ralph E. Whatley examined plaintiff on 24 June 1999 and "possible asbestos exposure but no clear evidence of pulmonary abnormalities on chest radiograph that can be attributed to asbestosis."
12. Plaintiff suffers from asbestos related pleural disease and asbestosis as a result of the many years of exposure to the hazards of asbestos while employed by defendant. Plaintiff's pulmonary impairment is permanent and is likely to progress. Plaintiff would benefit from medical monitoring, evaluation and some treatment in the future as a result of his asbestosis and asbestos related pleural disease. Further, medical monitoring is reasonably necessary due to his increased risk of developing lung and other asbestos related cancers.
13. Defendant, in lieu of participating in the North Carolina Dusty Trades Program as contained in N.C. Gen Stat. §§ 97-60 through 97-61.7, implemented its own asbestos medical surveillance program, which it asserts was consistent with the dusty trades statutory provisions. Defendant convinced the State of North Carolina that defendant need not be included in the state Dusty Trades Program since defendant's asbestos medical surveillance program served the same purpose. If defendant's medical surveillance program was in place during plaintiff's employment with defendant, then it is likely that plaintiff would have participated in the program by virtue of his employment with defendant.
14. At hearing before the Full Commission, counsel for plaintiff represented that plaintiff relied upon defendant's representations to him and his fellow employees that defendant's asbestos medical surveillance program would monitor his exposure to asbestos and would medically screen and monitor him for any signs of the development of asbestosis. In accordance with such program, plaintiff would have been seen by defendant's doctors on occasions throughout his employment with defendant, raising the possibility of discovery of plaintiff's asbestosis while he was still employed by defendant.
15. Plaintiff asserts that he was not aware of his development of asbestosis until after he retired because defendant's medical surveillance program did not effectively monitor and track his development of asbestosis during his employment with defendant, that had defendant's program provided proper medical screening to inform plaintiff of his development of asbestosis, he would have been diagnosed with asbestosis while still in defendant's employ and thus subject to an order of removal and subsequent award. If plaintiff, to his detriment, relied upon the false representations of defendant in regard to its medical monitoring of plaintiff, then defendant may be equitably estopped from arguing that plaintiff is not entitled to the 104 week award pursuant to an order of removal. Additional evidence as to the elements of equitable estoppel would be required for the Commission to make a determination on the matter.
16. Plaintiff's average weekly wage for the year in which he retired was sufficient to entitle plaintiff to a workers' compensation rate of $478.00, the maximum compensation rate under the North Carolina Workers' Compensation Act for 1995, the year in which plaintiff retired and was therefore last injuriously exposed.
17. The provisions of N.C. Gen. Stat. § 97-60 et seq. are not unconstitutional.
18. Plaintiff seeks attorney's fees from defendant in this case on the grounds that defendant defended this claim without reasonable ground. This issue should be reserved for subsequent determination at the final hearing in this matter.
*********** Based upon the foregoing stipulations and findings of fact, the Full Commission hereby makes the following:
CONCLUSIONS OF LAW 1. Plaintiff was last injuriously exposed to the hazards of asbestos dust while employed by defendant, for as much as 30 working days or parts thereof, within seven consecutive months, which exposure proximately augmented his asbestosis. N.C. Gen. Stat. § 97-57.
2. Plaintiff contracted the occupational diseases of asbestosis and asbestos related pleural disease while employed by defendant. N.C. Gen. Stat. §§ 97-53(24); 97-62.
3. The provisions of N.C. Gen. Stat. § 97-60 et seq. are constitutional.
4. N.C. Gen. Stat. § 97-61.5 provides in pertinent part that following a first hearing determination by the Industrial Commission that a claimant has asbestosis, based upon either medical evidence or by agreement of the parties, the Commission "shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis . . ." and that upon removal the employee shall be entitled to "weekly compensation equal to sixty-six and two-thirds percent of his average weekly wages . . . which compensation shall continue for a period of 104 weeks."
5. The North Carolina Supreme Court determined that a retiree who is no longer employed by the asbestos-exposing industry is not entitled to an order of removal and the subsequent award because he no longer faces the possibility of exposure. See Austin v. General Tire, 354 N.C. 344,553 S.E.2d 680 (2001). However, the instant case may be distinguishable from Austin in that plaintiff has asserted that he was not aware of his development of asbestosis until after he retired because defendant's medical surveillance program did not effectively monitor and track his development of asbestosis during his employment with defendant. Had defendant's program provided proper medical screening to inform plaintiff of his development of asbestosis, he might have been diagnosed with asbestosis while still in defendant's employ and, thus, subject to an order of removal and subsequent award. Plaintiff may have, to his detriment, relied upon the representations of defendant in regard to its medical monitoring of plaintiff. Thus, defendant may be equitably estopped from arguing that plaintiff is not entitled to the 104 week award pursuant to an order of removal.
The doctrine of equitable estoppel is a means of preventing a party from asserting a defense that is inconsistent with its prior conduct.Purser v. Heatherlin Properties, 137 N.C. App. 332, 337, 527 S.E.2d 689,692 (2000), cert. denied, 352 N.C. 676, 545 S.E.2d 428 (2000) (citingGodley v. County of Pitt, 306 N.C. 357, 360, 293 S.E.2d 167, 169 (1982)). In particular, the rule is grounded in the premise that `it offends every principle of equity and morality to permit a party to enjoy the benefits of a transaction and at the same time deny its terms or qualifications.' Id. (quoting Thompson v. Soles, 299 N.C. 484, 487,263 S.E.2d 599, 602 (1980)). The law of estoppel applies in workers' compensation cases, and may be used to ensure coverage of a work-related injury. Id. (citing Carroll v. Daniels and Daniels Constr. Co., Inc.,327 N.C. 616, 620, 398 S.E.2d 325, 328 (1990).
Defendant's argument to the effect that estoppel was raised too late in this case is to no avail. In Purser v. Heatherlin Properties,supra, the doctrine was raised for the first time by the Court of Appeals itself ex meru moto.
In Belfield v. Weyerhaeuser Co., 77 N.C. App. 332,335 S.E.2d 44 (1985), the North Carolina Court of Appeals held that equitable estoppel was appropriate to prevent an employer from raising a time limitation when the employer misrepresented to the employee that his rights under the Workers' Compensation Act were being exercised on his behalf by the employer. See Id. at 337, 47. The court stated:
The commonest type of case is that in which a claimant, typically not highly educated, contends that he was lulled into a sense of security by statements of employer or carrier representatives that `he will be taken care of' or that his claim has been filed for him or that a claim will not be necessary because he would be paid compensation benefits in any event. When such facts are established by the evidence, the lateness of the claim has ordinarily been excused.
Id. (quoting 3 A. Larson, The Law of Workmen's Compensation, Section 78.45 at 15-302 through 15-305 (1983)). In the case before the Commission, defendant similarly seeks to argue that the 104 week award pursuant to an order of removal is not timely because plaintiff was not diagnosed until after he retired. However, this Commission will not permit defendant to use a time limitation defense if there is evidence suggesting that defendant's own medical surveillance program failed to detect plaintiff's development of asbestosis while he was still in defendant's employ, or failed to disclose to plaintiff that he had developed asbestosis when defendant had knowledge thereof. Such acts may inequitably prevent plaintiff from receiving an order of removal and subsequent award that he otherwise deserved. For these reasons, defendant may be equitably estopped from arguing as to the timeliness of plaintiff's order or removal and subsequent award. Evidence as to the elements of estoppel is required before the Commission can make a determination on the matter. Therefore, this issue must be held in abeyance pending the presentation of such evidence.
6. Plaintiff is entitled to payment of all medical expenses incurred or to be incurred as a result of his asbestosis and asbestos related pleural disease for so long as such examinations, evaluations and treatments tend to affect a cure, give relief or lessen his disability. N.C. Gen. Stat. §§ 97-25; 97-59.
7. Plaintiff is entitled to undergo subsequent examinations as provided by law, pursuant to the provisions of N.C. Gen. Stat. § 97-61.1et seq. and is further entitled to any additional benefits due to plaintiff which shall be determined after additional examinations and hearings.
8. Plaintiff's claim for attorney's fees from defendant on the ground that defendant unreasonably defended this claim pursuant to N.C. Gen. Stat. § 97-88.1 is hereby held in abeyance until the final award is issued in this claim.
9. This claim must be remanded to a deputy commissioner for further hearing on the issue of estoppel, and for further hearing (if necessary) following subsequent examinations as required under N.C. Gen. Stat. § 97-61 et seq. Plaintiff's eligibility for further compensation in addition to medical and any other issues in controversy are hereby held in abeyance pending the outcome of further hearings.
*********** Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following:
AWARD 1. Defendant shall pay all medical expenses incurred or to be incurred by plaintiff as a result of her asbestosis and asbestos related pleural disease for so long as such examinations, evaluations and treatments tend to affect a cure, give relief or lessen her disability.
2. Plaintiff shall undergo additional examinations as provided by law.
3. The Commission hereby retains jurisdiction in this matter to address the issue of permanent impairment, as plaintiff has not undergone the additional panel examination as required by law for such determination. Upon completion of such examinations, should the parties be unable to agree on what additional compensation, if any, is due, the parties may request a hearing before this Commission on this matter.
4. The Commission additionally retains jurisdiction in this matter to address the issue of equitable estoppel, as raised by plaintiff, as a means of awarding to plaintiff the 104 week award pursuant to N.C. Gen. Stat. § 97-61.5.
5. Defendant shall pay the costs of this proceeding.
*********** ORDER REMANDING This claim is hereby remanded to a deputy commissioner for further hearing (if necessary) following subsequent examinations as required under N.C. Gen. Stat. § 97-61 et seq. Plaintiff's eligibility for further compensation under the Act beyond the medical compensation awarded herein and any other issues in controversy including equitable estoppel, are hereby held in abeyance pending the outcome of further hearings.
This the ___ day of February, 2003.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
DISSENTING:
S/_______________ DIANNE C. SELLERS COMMISSIONER