Long v. North Carolina Finishing Co.

WHICHARD, Judge. Plaintiff contends the Commission erred in applying the provisions of N.C. Gen. Stat. 97-58(a) in effect at the time of Long’s disablement, as opposed to the amended provisions of the statute which became effective 1 July 1981. We are constrained to agree. [571] The legislature expressly provided that the amended version of N.C. Gen. Stat. 97-58(a) would become effective 1 July 1981 and apply “to claims filed with the Industrial Commission on and after that date.” 1981 N.C. Sess. Laws ch. 734, s. 2. Plaintiffs claim was filed on 8 January 1982. Accordingly, the Commission erred in not applying the amended version of N.C. Gen. Stat. 97-58(a). Defendant argues that the Commission correctly applied the law in effect at the time of Long’s disablement, since to do otherwise would be an impermissible retrospective application of the law. A similar contention was rejected in Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E. 2d 189 (1979). In Booker an employee contracted serum hepatitis sometime during the first six months of 1971. On 3 January 1974 he died, and on 16 December 1974 his dependents filed claims with the Industrial Commission. The Commission determined that his death was the result of an “occupational disease” as defined by N.C. Gen. Stat. 97-53(13) as it existed at the time of his death, and it awarded his dependents benefits. This Court reversed on the grounds that the law in effect at the time the employee contracted the disease governed his dependents’ claims for benefits and that at that time serum hepatitis was not a compensable injury under the Workers’ Compensation Act because it was not expressly listed in the schedule of compensable diseases found in N.C. Gen. Stat. 97-53 and did not fit within the “catchall” definition of an occupational disease set out in N.C. Gen. Stat. 97-53(13). Booker v. Duke Medical Center, 32 N.C. App. 185, 231 S.E. 2d 187 (1977). In reversing this Court, the Supreme Court stated: Since the dependents’ right to compensation under G.S. 97-38 does not arise until the employee’s death, the date of his death logically governs which statute applies. Contrary to the intimation of the Court of Appeals this construction of G.S. 97-53(13) does not make the statute unconstitutional. A statute is not rendered unconstitutionally retroactive merely because it operates on facts which were in existence prior to its enactment. The proper question for consideration is whether the act as applied will interfere with rights which had vested or liabilities which had accrued at the time it took effect. . . . This is the test which has consistently been ap [572] plied in construing amendments to our Workmen’s Compensation Act. [Citations omitted.] Booker, 297 N.C. at 467, 256 S.E. 2d at 195. As in Booker, the amended version of N.C. Gen. Stat. 97-58(a) was in effect at the time plaintiffs right to compensation arose, viz, the time of Long’s death. For the reasons stated in Booker, we reject defendant’s contention that the amended version of N.C. Gen. Stat. 97-58(a) could not constitutionally apply to plaintiffs claim. The current version of N.C. Gen. Stat. 97-58(a), which the Commission should apply on remand, provides in pertinent part that “an employer shall not be liable for any compensation for asbestosis unless disablement or death results within ten years after the last exposure to that disease. . . .” (Emphasis supplied.) Plaintiff contends that the above requirement is satisfied if the Commission finds that Long was exposed to asbestos dust within ten years of his disablement. However, the Deputy Commissioner interpreted this provision to require a showing that Long “was last injuriously exposed to the hazards of asbestos” as defined in N.C. Gen. Stat. 97-57 within ten years of his disablement. (Emphasis supplied.) Similarly, the Commission interpreted an earlier version of N.C. Gen. Stat. 97-58(a), which in pertinent part limits an employer’s liability for asbestosis to instances in which “disablement or death results within two years after the last exposure to such disease,” to require a demonstration that Long “was injuriously exposed to the hazards of asbestos dust within the time allowed by statute.” (Emphasis supplied.) Since it is apparent from the Deputy Commissioner’s findings of fact that on remand the Commission will be required to apply the requirement that plaintiff demonstrate an “exposure to [asbestosis]” within ten years of Long’s disablement or death, we address plaintiffs contention. Defendant argues that N.C. Gen. Stat. 97-58(a) should be interpreted to require proof of an injurious exposure as defined in N.C. Gen. Stat. 97-57 within ten years of death or disablement. We disagree. N.C. Gen. Stat. 97-57, in pertinent part, provides: [573] In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable. For the purpose of this section when an employee has been exposed to the hazards of asbestosis or silicosis for as much as 30 working days, or parts thereof, within seven consecutive calendar months, such exposure shall be deemed injurious but any less exposure shall not be deemed injurious .... [Emphasis supplied.] Application of the above definition of an “injurious exposure” to the hazards of asbestosis is limited, by the express language of the statute, to determining liability under N.C. Gen. Stat. 97-57. Further, logically there is no reason to read the exposure requirements of N.C. Gen. Stat. 97-57 into N.C. Gen. Stat. 97-58(a). The purpose of N.C. Gen. Stat. 97-57 is to determine whether there has been sufficient exposure to the hazards of asbestosis during a particular period of employment to hold the employer during that period liable. By contrast, the purpose of N.C. Gen. Stat. 97-58(a) is to limit the time in which an employer is liable for a compensable exposure. It is well-established that the Workers’ Compensation Act “should be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow, and strict construction.” Hollman v. City of Raleigh, 273 N.C. 240, 252, 159 S.E. 2d 874, 882 (1968). See also Watkins v. City of Wilmington, 290 N.C. 276, 282, 225 S.E. 2d 577, 581 (1976); Petty v. Transport, Inc., 276 N.C. 417, 426, 173 S.E. 2d 321, 328 (1970). We thus decline to read the “injurious” exposure requirements of N.C. Gen. Stat. 97-57 into N.C. Gen. Stat. 97-58(a). If the legislature desires that N.C. Gen. Stat. 97-58(a) be so interpreted, it should expressly so provide. Defendant’s cross assignments of error question whether the evidence is sufficient to support certain findings of fact made by the Deputy Commissioner. The Commission did not expressly [574] adopt the Deputy Commissioner’s findings. Since it applied N.C. Gen. Stat. 97-58 as it existed at the time of Long’s disablement, it may have considered these findings irrelevant. On remand the Commission should consider defendant’s contention that certain findings made by the Deputy Commissioner are not supported by the evidence. For the reasons stated, the Opinion and Award of the Industrial Commission is reversed, and the cause is remanded for a determination of plaintiffs claim not inconsistent with this opinion. Reversed and remanded. Judges Webb and Johnson concur.