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Payne v. Charlotte Heating & Air Conditioning8/16/2005
This appeal arises out of Herby S. Payne's workers' compensation claim for disability benefits based on asbestosis. Subsequent to the hearing on his claim, but before a decision was rendered, Mr. Payne died and his wife Eileen C. Payne, the administratrix of his estate, was substituted as plaintiff. Defendants Ross and Witmer, Inc. ("R&W") and Travelers Insurance Company have appealed from the Industrial Commission's opinion and award (a) granting total disability benefits for a period preceding Mr. Payne's death and death benefits under N.C. Gen. Stat. § 97-39 (2003) and (b) finding that Mr. Payne was last injuriously exposed to the hazards of asbestosis while employed at R&W.
The primary issues on appeal are whether the death benefits claim was properly before the Commission and, if so, whether it is time-barred by N.C. Gen. Stat. § 97-61.6 (2003). We hold that the Full Commission had authority to decide the death benefits claims. Further, because we have concluded that N.C. Gen. Stat. § 97-61.6 violates the Equal Protection Clause, we hold that the claim for death benefits was timely. With respect to defendants' arguments regarding the merits of plaintiff's claim for benefits, since the Commission's findings are supported by competent evidence, the appropriate standard of review compels that we affirm the Commission's opinion and award.
Facts
Mr. Payne worked at Charlotte Heating & Air Conditioning from 1960 through 1966. He was responsible for servicing furnaces and boilers, during the course of which he was exposed to asbestos products. Mr. Payne mixed "asbestos mud" by pouring asbestos powder into buckets and adding water. He used the mud to repair boilers and insulate pipes. He also worked with asbestos rope and asbestos millboard, cutting it to size and installing it. Although he was, as a result, exposed to airborne asbestos dust, he was not provided and never used any form of respiratory protection.
After working for other companies in positions not involving significant asbestos exposure, Mr. Payne was employed by R&W from 1972 to 1975. At R&W, Mr. Payne primarily fabricated and installed duct work from sheet metal, but he also "set some furnaces." At one point during his employment with R&W, Mr. Payne worked on an apartment complex construction project involving furnace installations in 160 to 170 apartment units. Each furnace was surrounded by asbestos millboard and asbestos cloth. Mr. Payne was the supervisor of the crew and the Commission found was exposed to airborne asbestos dust without having respiratory protection.
After Mr. Payne's employment with R&W ended, his subsequent jobs did not expose him to asbestos products to any significant extent. In 1989, Mr. Payne developed back problems that required surgery. After the surgery, he remained symptomatic and did not return to work, but rather began receiving Social Security disability. Mr. Payne and his wife both testified that ultimately his back symptoms were no longer the cause of his disability.
In January 1994, Mr. Payne saw a pulmonologist regarding a notable worsening of his ability to breathe. Mr. Payne had smoked one to two packages of cigarettes daily until quitting in 1993. Pulmonary function studies indicated very severe obstructive lung disease and severe emphysema. Upon further x-rays and examinations, Mr. Payne was diagnosed with emphysema, asbestosis, and pleural plaques related to asbestos exposure. Two National Institute of Occupational Safety and Health ("NIOSH") certified "B readers," who evaluate whether workers exposed to dust in their work environments have dust-related disease, also found that Mr. Payne had asbestosis or
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