Opinion
I.C. NO. 610609
Filed 14 July 2003
This case was reviewed by the Full Commission on 10 July 2002 upon appeal by plaintiff from an Opinion and Award by Deputy Commissioner Morgan S. Chapman, filed on 21 November 2001. Following the hearing before the Deputy Commissioner, the record was held open for the submission of the deposition testimony of Dr. Frederick M. Dula, Dr. Michael S. Alexander and Dr. Stephen D. Proctor.
Subsequent to the hearing before the Deputy Commissioner, plaintiff Herby S. Payne died. His estate was then substituted as party plaintiff. By Order filed on 28 February 2001, Deputy Commissioner Chapman substituted Eileen C. Payne, Administratrix of the Estate of Herby S. Payne, as plaintiff. On or about 4 September 2001, plaintiff filed an Amended Form 18B Claim by Employee, Representative, or Dependent for Benefits for Lung Disease, in which it was alleged that decedent's death was causally related to his asbestosis contracted during his employment with defendant-employer Charlotte Heating and Air Conditioning. Therefore, the issue of decedent's eligibility for death benefits is before the Full Commission.
Plaintiff: Wallace and Graham, Salisbury, North Carolina; M. Reid Acree, Jr., appearing.
Defendant: Nexsen Pruett Jacobs Pollard, Charlotte, North Carolina; Sean M. Phelan, appearing for Charlotte Heating and Air Conditioning.
Hedrick Eatman Gardner Kincheloe, Charlotte, North Carolina; C. J. Childers, appearing for Ross Witmer, Inc.
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Upon review of all of the competent evidence of record with reference to the errors assigned, and finding no good ground 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 and enters the following Opinion and Award.
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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 as:
STIPULATIONS
1. Plaintiff was employed by defendant-employer Charlotte Heating Air Conditioning (hereafter "Charlotte Heating Air") from 1960 through 1966.
2. Plaintiff was employed by defendant-employer Ross Witmer, Inc., (hereafter "Ross Witmer") from 1972 through 1975.
3. The parties are subject to the North Carolina Workers' Compensation Act since both defendant-employers employed the requisite number of employees to be bound under the provisions of said Act.
4. Defendant-employer Charlotte Heating Air was insured by Employers Mutual Casualty Company during all relevant periods of plaintiff's employment with Charlotte Heating Air.
5. Defendant-employer Ross Witmer was insured by Travelers Insurance Company during all relevant periods of plaintiff's employment with Ross Witmer.
6. Plaintiff made $32,052.00 in his last year of employment in 1989.
7. In addition, the parties stipulated into evidence the following:
1. The documents attached to the Pre-Trial Agreement, including medical records from Drs. Pamela Culp, Bruce Fee, Tommy L. Weaver, Stephen Proctor, Frederick M. Dula, Richard Bernstein, Larry Maugel and Selwyn Spangenthal.
2. Additional medical records submitted 3 July 2001 from Dr. Bernstein.
3. Subsequent to the hearing before the Deputy Commissioner, Deputy Commissioner Chapman issued an Order dated 11 June 2001 accepting into evidence the death certificate of decedent Payne.
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Based upon all of the competent evidence in the record, the Full Commission makes the following:
FINDINGS OF FACT
1. Herby S. Payne was 64 years old on the date of hearing before the Deputy Commissioner on 3 May 2000. He subsequently died on 16 October 2000. He began working for defendant Charlotte Heating Air Conditioning (Charlotte Heating) in 1960. After a training period, he was assigned to do primarily service work, which he did alone. Service work included repairing boilers where plaintiff would go inside the boiler and replace ceramic fire brick using "asbestos mud" to hold it in place. Decedent mixed the asbestos mud by emptying a bag of dry powder into a five gallon bucket and adding water. When opening a bag of dry powder and pouring it into the bucket, decedent was exposed to airborne dust particles of asbestos. Decedent also used the mud to insulate elbows in the steam pipes coming out of the boiler where the fiberglass insulation would not fit. Asbestos roping was used to seal the door of the boiler and he would cut it to the proper length.
2. While working for Charlotte Heating, decedent spent 75% of his working hours servicing or installing oil furnaces. Servicing existing furnaces did not normally require applying asbestos insulation or disturbing the insulation previously installed. However, installation work often did and decedent installed new furnaces between one and ten times per month. When oil furnaces were installed in a crawl space under a house, there was often insufficient clearance between the furnace and the floor joist in order to meet building code requirements. Consequently, a piece of asbestos millboard was placed in that space. Decedent would have to cut the board to the correct size in those instances. When decedent cut boards of insulation, he was exposed to airborne particles of asbestos dust. Decedent also put asbestos mud around flue pipes if there were no concrete on his truck, again exposing himself to airborne asbestos dust while mixing the mud.
3. Although decedent primarily performed service work, he was assigned to work on a large project for approximately three months during the period of his employment with Charlotte Heating. The company obtained a contract to build tables and large ovens for a textile dyeing operation. Decedent installed much of the insulation for the ovens and used asbestos millboard and mud in the process. In so doing, decedent was exposed to asbestos dust while mixing the mud from dry asbestos powder. There was also airborne asbestos dust associated with sawing the asbestos millboard to use on the inside or outside of the framework of the ovens. It took approximately two months to complete the insulation process.
4. Decedent was never provided and never used any form of respiratory protection during his employment with Charlotte Heating. He worked for the company until 1966 when he left to go work for another heating and air conditioning company. After working for other companies in jobs which did not involve much exposure to asbestos products, he began working for defendant Ross Witmer in 1972. Most of his work for Ross Witmer involved fabricating ductwork from sheet metal and then installing it, although he did set some furnaces, as well.
5. Ross Witmer was hired to install the furnaces in a new apartment complex being built in Charlotte which consisted of approximately 160 to 170 units. The furnace for each unit was placed inside a closet. Since the closets were so small that there was an inadequate clearance to meet building codes, asbestos millboard had to be attached to three walls of each closet for fire protection. The workers also used asbestos cloth on a section of the system between the furnace and the door. Decedent was the supervisor for the crew and showed them how to cut and apply the asbestos millboard and how to perform the rest of the installation. When cutting asbestos millboard, decedent was exposed to airborne asbestos dust. After showing the crew how to cut and install the millboard, decedent would go back and forth between the shop and the apartment complex, taking measurements for ductwork at the next unit, fabricating the ductwork at the shop and then returning to the apartment to install the ductwork. While measuring and installing ductwork, he would be in the vicinity of the crew who were cutting and applying asbestos millboard and cloth. While in the vicinity of the crew, decedent was exposed to airborne asbestos dust. Decedent would work at the apartment complex two to four times per week during the project, which lasted over six months. No respiratory protection was provided to the workers.
6. Decedent stopped working for Ross Witmer in 1975 and subsequently worked for a number of different employers, or as a self-employed car mechanic, until 1985 when he started an electrostatic painting business. To his knowledge, decedent was not exposed to asbestos products to any significant degree after he left Ross Witmer. In 1989 he developed back problems which lead to fusion surgery. Despite the operation, decedent remained symptomatic and went on Social Security disability. Decedent did not thereafter return to the workforce.
7. Decedent testified at the hearing before the Deputy Commissioner that his back symptoms were no longer keeping him out of work, but was unable to provide a date at which he believed he was no longer disabled as a result of his back problems. Decedent's wife testified at the hearing before the Deputy Commissioner that decedent was no longer disabled approximately 18 months after his 1989 back surgery. Decedent underwent a second back surgery for a slipped disk in late 1997.
8. Decedent smoked one to two packs of cigarettes per day for at least thirty years until 1993 when he quit.
9. On 21 January 1994, decedent saw Dr. Spangenthal, a pulmonologist, on referral from his family doctor. Decedent told Dr. Spangenthal that he had been short of breath for a few years at that point, but had become significantly worse for the previous year or two to the point that he was now short of breath with minor exertion. Decedent had just been discharged from the hospital where he had been treated for breathing problems, and he indicated that he had previously been treated for pneumonia. Decedent also noted that he had smoked one to two packs of cigarettes per day for approximately 30 years, but had quit approximately four months earlier. Pulmonary function studies indicated very severe obstructive lung disease. Since decedent reported problems with coughing, Dr. Spangenthal was of the impression that he had some chronic bronchitis. However, it became clear in subsequent follow-up that decedent had severe emphysema with marked air trapping. He was treated with medications.
10. On 5 January 1995, decedent had a chest x-ray. Dr. Bruce Fee, the radiologist who performed the examination, found "evidence of bilateral pleural plaquing with some calcifications compatible with asbestosis." He further noted "some linear density and stranding anteriorly, especially on the right, which may relate to atelectasis and/or fibrosis." Dr. Fee recommended that a series of films be made over a period of months for comparison.
11. Decedent subsequently underwent further x-rays, a regular CT scan and a high resolution CT scan which have been reviewed and interpreted by several different radiologists. Dr. Pamela Culp, a radiologist, examined the later high resolution CT and compared it with the 1995 CT. She concluded that there was no acute or progressive change since the earlier CT, and noted "bilateral pleural thickening with some calcification again suggestive of asbestos exposure. There are changes consistent with chronic interstitial lung disease and probable emphysematous COPD with bilateral interstitial thickening/scarring." On 30 April 1998, Dr. Culp compared a new CT to the one taken in November 1997. She noted changes of chronic interstitial lung disease with "persistent patchy interstitial scarring and persistent pleural thickening and calcification changes of asbestos exposure."
12. Dr. Stephen D. Proctor, a specialist in pulmonary medicine, examined decedent on 19 August 1999. At that time, decedent reported to Dr. Proctor that he experienced dyspnea upon "almost any exertion, such as walking from one room to another." He further reported wheezing, cough productive of clear sputum and occasional orthopnea. Decedent was using a wheelchair and oxygen. Dr. Proctor reviewed decedent's pulmonary function tests and radiographic studies. Decedent's chest x-ray showed "severe emphysematous changes, bilateral pleural plaque formation, a small left diaphragmatic plaque, increased density in the right hilar area and degenerative changes in the spine." Decedent's chest CT showed "severe emphysematous changes, coronary artery calcification, bilateral increased interstitial markings and extensive bilateral pleural plaque formation." Based upon the examination, decedent's history and the pulmonary function tests, Dr. Proctor diagnosed decedent with emphysema and "asbestosis and pleural plaques related to asbestos exposure."
13. Dr. Fred Dula, a NIOSH certified B-reader with Piedmont Radiological Associates in Salisbury, N.C., examined decedent's chest films dated 22 February 1998. Dr. Dula noted "a left-sided diaphragmatic plaque" and "mild pleural thickening and plaque formation bilaterally." Dr. Dula's impression was that his findings were "entirely consistent with asbestosis."
14. Dr. Richard Bernstein, a NIOSH certified B-reader with Pulmonary Critical Care Medicine, examined decedent's x-rays dated 30 February 1999 and found "severe bullous disease with possible parenchymal changes in the bases. Pleural disease consistent with long standing asbestos exposure."
15. The deposition testimony of Dr. Michael S. Alexander, a diagnostic radiographic expert and certified B-reader, was taken on 31 August 2001. On 20 March 2001, Dr. Alexander examined a high resolution chest CT taken on 30 July 1999 and found "bilateral partially calcified circumscribed chest wall pleural plaques . . . along the anterior and posterior chest wall pleural surfaces." Dr. Alexander concluded that decedent had "asbestos disease of the pleura, but insufficient evidence of pulmonary asbestosis." Dr. Alexander further commented that decedent had "stable asbestos-related pleural disease and chronic scarring in the anterior mid lung zones," but that "any pulmonary impairment or dysfunction is almost certainly caused by the extensive emphysema. Even if the localized interstitial abnormalities were in part caused by asbestosis, they probably would not contribute to [decedent's] pulmonary impairment in view of the extensive emphysema which is present." Given that Dr. Alexander is not a pulmonologist, did not examine plaintiff personally and is not a diagnosing physician, the Full Commission gives greater weight to the diagnostic conclusions of Dr. Proctor and the x-ray and CT interpretations of Drs. Dula and Bernstein.
16. Decedent died on 16 October 2000. The Certificate of Death filed on 19 October 2000 states the causes of death as emphysema and pulmonary fibrosis.
17. Decedent suffered from the occupational disease asbestosis as a direct result of his work-related exposure to the hazards of asbestos for 30 working days or parts thereof, within seven consecutive calendar months while employed with Charlotte Heating Air Conditioning and with Ross Witmer, Inc. Decedent's last injurious exposure to asbestos occurred during his employment with defendant-employer Ross Witmer.
18. Decedent's asbestosis combined with other pulmonary conditions resulted in severe pulmonary impairment which resulted in his total disability from employment from 19 August 1999, the date he was diagnosed with asbestosis by Dr. Proctor, until 16 October 2000, the date of his death.
19. Decedent's asbestosis either caused or significantly contributed to the material aggravation of his severe pulmonary condition which in turn significantly contributed to his death.
20. Plaintiff made $32,052.00 in his last year of employment in 1989.
21. Defendants' defense of decedent's claim was not unreasonable and plaintiff is not entitled to receive an award of attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1.
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Based upon the foregoing stipulations and findings of fact, the Full Commission makes the following:
CONCLUSIONS OF LAW
1. Decedent contracted the occupational disease of asbestosis and asbestos related pleural plaques as a result of his asbestos exposure during his employments with defendant-employers. N.C. Gen. Stat. §§ 97-53(24); 97-62.
2. Decedent's last injurious exposure to asbestos occurred during his employment with defendant-employer Ross Witmer; therefore, defendant-employer Ross Witmer and defendant Carrier Traveler's Insurance Company are liable for decedent's claim. N.C. Gen. Stat. § 97-57; Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501 (1986).
3. Decedent became totally disabled as a result of his occupational disease of asbestosis and asbestos related pleural plaques by the time of his diagnosis by Dr. Proctor on 19 October 1999. Decedent's total disability continued until the date of his death on 16 October 2000. Decedent is eligible for total disability compensation at the rate of $410.94 per week from 19 October 1999 through 16 October 2000. N.C. Gen. Stat. §§ 97-29; 97-61.6.
5. Decedent died while he was entitled to total compensation for disablement due to asbestosis; therefore, plaintiff is entitled to compensatory death benefits in the amount of $410.94 per week for a total of 400 weeks, or $164,376.00. Plaintiff is entitled to an additional $3,500.00 in burial expenses. N.C. Gen. Stat. §§ 97-38; 97-61.6.
6. Plaintiff is the widow of decedent and is entitled to death benefits under N.C. Gen. Stat. § 97-39.
7. Plaintiff is entitled to payment by liable defendants of all medical expenses related to the treatment of decedent's occupational disease of asbestosis. N.C. Gen. Stat. § 97-25.
8. Defendants have not defended decedent's claim unreasonably; therefore, plaintiff is not entitled to attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1.
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Based upon the foregoing findings of fact and conclusions of law, the Full Commission enters the following:
AWARD
1. Defendants Ross Witmer and Traveler's Insurance Company shall pay to plaintiff total disability compensation in the amount of $410.94 per week from 19 October 1999 through 16 October 2000. This amount shall be paid in a lump sum, subject to attorney's fees approved below.
2. Defendants Ross Witmer and Traveler's Insurance Company shall pay to plaintiff the amount of $410.94 per week for a period of 400 weeks, beginning on 16 October 2000. That portion of the award which has accrued shall be paid in a lump sum, subject to attorney's fees.
3. Defendants Ross Witmer and Traveler's Insurance Company shall pay to plaintiff any medical expenses related to the treatment of decedent's occupational disease of asbestosis.
4. Plaintiff's counsel is entitled to a reasonable attorney's fee of 25% of the amounts awarded in Paragraphs 1 and 2 herein. Defendants Ross Witmer and Traveler's Insurance Company shall pay directly to plaintiff's counsel one fourth of the lump sum payments awarded above. Thereafter, defendants shall pay to plaintiff's counsel every fourth check.
5. Plaintiff's claim for attorney's fees pursuant to N.C. Gen. Stat. § 97-88.1 is hereby denied.
6. Defendants Ross Witmer and Traveler's Insurance Company shall pay the costs of this action.
This the ___ day of March, 2003.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
S/_____________ THOMAS J. BOLCH COMMISSIONER
DISSENTING:
S/_______________ DIANNE C. SELLERS COMMISSIONER
I respectfully dissent from the majority opinion for three reasons: (1) plaintiff has not established that he has asbestosis; (2) plaintiff's death claim is not properly before the Commission; and (3) plaintiff's death claim would be barred by § 97-61.6.
PLAINTIFF HAS NOT ESTABLISHED ASBESTOSIS
I disagree with the majority's conclusion that plaintiff has asbestosis. "Asbestosis" is statutorily defined as "characteristic fibrotic condition of the lungs caused by the inhalation of asbestos dust." N.C. Gen. Stat. § 97-62. Asbestosis is a medical condition that is to be determined by current, medically accepted standards of diagnosis. The medically accepted standards for the diagnosis of asbestosis are contained in The Diagnosis of Nonmalignant Diseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). The North Carolina Workers' Compensation Act places the burden on the plaintiff to establish that his claim is compensable by a preponderance of the competent evidence. In a similar fashion the medical standards for a differential diagnosis require that the physician have all available medical evidence necessary to make the diagnosis and that the doctor consider and be able to preclude other potential causes for the disease or condition. See Westberry v. Gislaved Gummi, 178 F.3d 257 (4th Cir. 1999).
The American Thoracic Society has determined that the diagnosis of "asbestosis" is a judgment based on a careful consideration of all relevant clinical findings. The Diagnosis of Nonmalignant Diseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986). According to the American Thoracic Society, the diagnosis of asbestosis requires:
A reliable history of exposure, and
An appropriate time interval between exposure and detection, with
The American Thoracic Society expressed that "[I]t is possible that interstitial fibrosis may be present even though none of these criteria [referring to items 3-6, above] are satisfied, but in our opinion, in these circumstances the clinical diagnosis cannot be made." Thus, a proper diagnosis, absent pathologic examination, requires proof of the first two criteria and at least 1 of the remaining criteria. The Diagnosis of Nonmalignant Diseases Related to Asbestos, 134 American Review of Respiratory Disease 363 (Adopted by American Lung Association, March 1986).
Chest roentgenographic evidence of type "s," "t," "u," small irregular opacifications of a profusion of 1/1 or greater,
A restrictive pattern of lung impairment with a forced vital capacity below lower limit of normal,
A diffusing capacity below the lower limit of normal, and/or
Bilateral late or pan inspiratory crackles at the posterior lung bases not cleared by cough.
The American Thoracic Society (ATS) acknowledged that interstitial fibrosis might be present without any of the other criteria (one of more of items 3 through 6, listed above); however, it was recommended that a clinical diagnosis could not be made without the other criteria. Id.
The medical evidence does not allow the testifying physicians, let alone the Commission, to opine that plaintiff has asbestosis. See Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) (speculation and conjecture is not evidence) ; Smith v. Beasley Enterprises, ___ N.C. App. ___, 577 S.E.2d 902, 2002 WL 32058428 (2002) (Commission should review witness' testimony to determine that it is competent); See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible). Although there is evidence to support a finding that plaintiff had exposure to asbestosis with sufficient latency to potentially produce asbestosis, there is no competent evidence to support the third through sixth criteria under the American Thoracic Society (ATS) standard for diagnosis of asbestosis. First, plaintiff's x-rays are either negative for any parenchymal abnormalities consistent with pneumoconiosis or at most reveal a 1/0 profusion rating; findings which are below the minimum 1/1 profusion rating required by the American Thoracic Society standard. Second, plaintiff's pulmonary function testing does not establish the fourth and fifth criteria of the ATS standard. Dr. Proctor's pulmonary function test reveals that plaintiff has severe obstructive disease, most likely secondary to plaintiff's unrelated emphysema; however, it does not reveal any restrictive defect associated with asbestosis. Finally, Dr. Proctor testified that plaintiff did not have any crackles. Nor did plaintiff exhibit clubbing or other symptoms associated with asbestosis, as opposed to emphysema or other unrelated condition.
Dr. Proctor testified that you generally "have to have radiographic findings" to diagnose asbestosis, and that without radiographic findings you have to be careful about attributing disease to asbestosis. Proctor deposition at p. 80. Despite this testimony, Dr. Proctor opined that Mr. Payne had asbestos based on Dr. Dula's B-read for a July 30, 1999 x-ray which reported no parenchymal abnormalities consistent with pneumoconiosis. Dr. Proctor was not presented with Dr. Dula's subsequent report, which was read to reveal a 1/0 profusion level, until his deposition. Neither radiology report, nor any other x-ray study in evidence, meets the required minimum ATS standard of a 1/1 profusion level. Thus, Dr. Proctor's opinion that plaintiff has asbestosis is not substantiated by the medical tests that he believes are relevant. See Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003); Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000).
Dr. Proctor testified on direct examination that while studying for his Pulmonary Boards he learned that a low vital capacity reading would be very suggestive of a concomitant restrictive ventilatory defect. Proctor deposition at p. 16. Dr. Proctor further explained, however, that in cases of restrictive ventilatory defect you would expect a decrease in values across the board, a lower vital capacity reading, a lower total lung capacity, and a lower residual volume. In plaintiff's examination, however, he only had two of those values diminished. Proctor Deposition at p. 63-64. Dr. Proctor's interpretation of plaintiff's pulmonary function testing fails to raise any question concerning a restrictive component which is the condition associated with asbestosis; plaintiff was diagnosed with unrelated obstructive disease secondary to smoking.
The issue before the Commission is whether plaintiff has "asbestosis," not merely whether there is evidence that he was exposed to asbestos or has other asbestos-related disease or condition. Without competent medical evidence to allow the diagnosis of asbestosis under the medically accepted ATS standard, the Commission cannot find that plaintiff has asbestosis. See Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000) (speculation and conjecture is not evidence) ; Smith v. Beasley Enterprises, ___ N.C. App. ___, 577 S.E.2d 902, 2002 WL 32058428 (2002) (Commission should review witness' testimony to determine that it is competent); See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) (court has duty to police the evidence to ensure that it is scientifically credible). Findings that are "consistent with" asbestosis may cause the physician to consider this potential diagnosis; however, the fact that certain evidence is "consistent with" asbestosis is not sufficient to allow us to find that plaintiff, in fact, has asbestosis, when the medical evidence fails to meet the required elements for the diagnosis of this condition under the ATS standard for clinical diagnosis. See Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003); Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000). Further, the majority should have to explain how the opinions of physicians selected by counsel to perform screening examinations for a potential diagnosis should take precedence over the records of plaintiff's treating physician. Moreover, in this case, the evidence fails to substantiate the third through sixth elements of the ATS standard; therefore, any "opinion" that plaintiff has asbestosis is not based on competent evidence. See Holley v. ACTS, ___ N.C. ___, ___ S.E.2d ___ (2003); Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d 912 (2000).
DEATH CLAIM NOT BEFORE COMMISSION
Due process requires notice of the issues and the opportunity to be heard. See McDonalds Corp. v. Dyer, 338 N.C. 445, 450 S.E.2d 888 (1994); Woody v. Thomasville Upholstery, 146 N.C. App. 187, 552 S.E.2d 202 (2001), reversed on additional issues, 355 N.C. 483, 562 S.E.2d 422 (2002); Goff v. Foster Forbes Glass, 140 N.C. App. 130, 535 S.E.2d 602 (2000); Article I, § 17 North Carolina Constitution. In a workers' compensation case, the due process notice that an issue is in controversy before the Commission generally arises from the filing of a Form 33, Form 33R, or the pre-trial agreement presented by the parties at the deputy commissioner hearing.
In this case, plaintiff-decedent, Herby S. Payne, was alive on May 3, 2000, and testified at the deputy commissioner hearing, and thereby the compensability of his death was not at issue at the time that the evidence was presented to the deputy commissioner. Mr. Payne died on October 16, 2000. In September 2001, an amended Form 18B was filed naming the administratrix as the party plaintiff succeeding the interest of the deceased plaintiff. The Form 18B, however, does not identify death benefit beneficiaries. Plaintiff did not file an amended Form 33 seeking to add the issue of death benefits, did not seek to amend the issues in the pre-trial agreement, or otherwise take timely action to seek to join the issue of the compensability of plaintiff's death before the evidentiary record closed. The deputy commissioner's Opinion and Award refused to address whether plaintiff's death was compensable, stating:
"Subsequent to the hearing, Mr. Payne died. His estate was the substituted as party plaintiff. At no time were Mr. Payne's dependents added as parties plaintiff, and the existing parties did not submit additional stipulations adding issues for decision regarding Mr. Payne's death. The Pre-Trial Agreement submitted by the parties did not list death benefits as an issue to be decided since Mr. Payne was still alive at that time. Although not the proper party, plaintiff has attempted to raise the issue of death benefits through contentions and defendants have objected to a ruling on that issue. Under these circumstances, it appears that defendant's objection should be sustained, and it has been sustained."
The file does not indicate that plaintiff ever properly asked the deputy commissioner to amend the claim to include the issue of death benefits, and there is no indication that any person other than the Estate of the deceased plaintiff has filed a claim. Before the Full Commission the defendants assert that the plaintiff did not file the amended Form 18B until after the depositions had been completed and the record closed, the issue of cause of death was not addressed in the pre-trial and was not an issue before the deputy commissioner, and that defendants were not afforded proper notice and opportunity to investigate and present evidence on this issue.
Even the current caption of the Full Commission decision references the Estate as the only party to the action.
Under the facts of this case, defendants were not afforded proper notice that the cause of plaintiff's death was in litigation before the deputy commissioner. Because the majority has decided to render a decision based on the record before the deputy commissioner, when this issue was not before the deputy, defendants' due process rights of notice and opportunity to be heard have been violated. See McDonalds Corp. v. Dyer, 338 N.C. 445, 450 S.E.2d 888 (1994); Woody v. Thomasville Upholstery, 146 N.C. App. 187, 552 S.E.2d 202 (2001), reversed on additional issues, 355 N.C. 483, 562 S.E.2d 422 (2002); Goff v. Foster Forbes Glass, 140 N.C. App. 130, 535 S.E.2d 602 (2000); Article I, § 17 North Carolina Constitution. The issues of the compensability of plaintiff-decedent's death and who are the appropriate beneficiaries, if any, were not before the deputy commissioner and these issues should not be considered now by the Full Commission. Rather, the Commission should not assume jurisdiction in the claim for death benefits and allow the parties to properly resolve this dispute at the deputy commissioner section. Otherwise, we would need to deny the death benefits claim because the Estate is not the proper beneficiary and neither Mrs. Payne nor any other potential beneficiary has filed a claim.
DEATH CLAIM BARRED BY § 97-61.6
Section 97-61.6 of the Act states:
"should death result from asbestosis or silicosis within two years from the date of last exposure, or should death result from asbestosis or silicosis, or from a secondary infection or diseases developing from asbestosis or silicosis within 350 weeks from the date of last exposure and while the employee is entitled to compensation for disablement due to asbestosis or silicosis, either partial or total, then in either of these events, the employer shall pay, or cause to be paid compensation in accordance with G.S. § 97-38."
Under this provision, the dependent(s) of a deceased employee, who has asbestosis, is entitled to death benefits in one of two circumstances: (1) the death results from asbestosis within two years from the date of last exposure; or (2) if death results within 350 weeks from the date of last exposure and while the employee is entitled to compensation. See Davis v. North Carolina Granite Corp., 259 N.C. 672, 131 S.E.2d 335 (1963).
The majority found that plaintiff died on October 16, 2000, was last employed (by anyone) in 1989, and was last injurious exposed to asbestos while working for Ross Witmer from 1972 through 1975. Under these circumstances, plaintiff did not die within two years of date of last exposure. Nor did his death occur within 350 weeks of his last exposure. Thus, plaintiff's death is not compensable. N.C. Gen. Stat. §§ 97-38, 97-61.6.
Therefore, I respectfully dissent from the majority's award of benefits for plaintiff in this case.
S/_______________ DIANNE C. SELLERS COMMISSIONER