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Payne v. Charlotte Heating & Air Conditioning8/16/2005
unity to be heard when the Full Commission admitted evidence of two independent medical examinations ("IMEs") submitted by plaintiff, but did not rule until after filing its opinion and award on defendants' five objections to the allowance of the IMEs, defendants' request to depose two physicians, and on defendants' six requests to have plaintiff submit to an IME by a physician of defendants' choosing). We, therefore, hold that defendants have not demonstrated that they were denied notice and an opportunity to be heard on the issue of death benefits.
II.
Defendants argue that, even if the issue of death benefits was properly before the Commission, the claim was barred by N.C. Gen. Stat. § 97-61.6. Plaintiff argues in response that the statute violates the Equal Protection Clause and is, therefore, unconstitutional. The Full Commission awarded death benefits to plaintiff without specifically addressing the constitutionality of this statute. The parties agree, however, that if N.C. Gen. Stat. § 97-61.6 controls, then plaintiff is barred from seeking death benefits.
Paragraph 4 of N.C. Gen. Stat. § 97-61.6 sets out the time frame within which a claim for death benefits may be brought if the death resulted from asbestosis and silicosis:
hould 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.
(Emphasis added.) In comparison, for occupational diseases other than asbestosis or silicosis, N.C. Gen. Stat. § 97-38 (2003) provides for payment of death benefits " f death results proximately from a compensable injury or occupational disease and within six years thereafter, or within two years of the final determination of disability, whichever is later . . . ." (Emphasis added). Thus, for asbestosis and silicosis, the time limitation runs from the date of last exposure, while for all other occupational diseases, the focus is on the occurrence of the occupational disease and the final determination of disability.
Plaintiff contends that N.C. Gen. Stat. § 97-61.6 deprives those with asbestosis and silicosis of equal protection under the law. Plaintiff points out: "Victims of [asbestosis and silicosis], because of paragraph 4 of N.C. Gen. Stat. §97-61.6, are the only group of individuals suffering from occupational diseases whose claims must be diagnosed within a certain time period from date of last exposure; thus to preserve their future death benefits, these individuals would have to file claims prior to diagnosis or death." Plaintiff argues that there is no rational basis for providing a substantially shorter time frame for death benefit claims based on asbestosis or silicosis than death benefits claims based other latent occupational diseases.
The principles governing our decision in this case were set out by this Court _ and approved by the North Carolina Supreme Court _ in Walters v. Algernon Blair, 120 N.C. App. 398, 462 S.E.2d 232 (1995), aff'd per curiam, 344 N.C. 628, 476 S.E.2d 105 (1996), cert. denied, 520 U.S. 1196, 137 L.Ed. 2d 700, 117 S.Ct. 1551 (1997). Walters addressed the question whether N.C. Gen. Stat. § 97-63 (1991), "which treats employees with asbestosis and silicosis differently from employees with other occupational diseases," violated the Equal Protection
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