# Austin v. Continental General Tire

> Court of Appeals of North Carolina · December 29, 2000 · 141 N.C. App. 397

URL: https://www.frixlaw.com/law-library/cases/9856088

## Case

- **Full name:** WAYNE AUSTIN, Employee, Plaintiff-Appellee v. CONTINENTAL GENERAL TIRE, SELF-INSURED, Employer, Defendant-Appellant
- **Court:** Court of Appeals of North Carolina
- **Decided:** December 29, 2000
- **Citations:** 141 N.C. App. 397; 540 S.E.2d 824; 2000 N.C. App. LEXIS 1415
- **Precedential status:** Published
- **Opinion:** Dissent by Greene
- **Judges:** McGee, Edmunds, Greene
- **Cited by:** 77 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Austin v. Continental General Tire, 354 N.C. 344 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9856088

## Opinion text

Judge Greene
dissenting.
I disagree with the majority that an employee “need not be ‘removed’ from employment to be entitled to the 104 weeks compensation set forth in N.C.G.S. § 97-61.5.” I, therefore, dissent.
N.C. Gen. Stat. § 97-64 sets forth the general rule that “in case of disablement or death from silicosis and/or asbestosis, compensation shall be payable in accordance with the provisions of the North Carolina Workers’ Compensation Act.” N.C.G.S. § 97-64 (1999). In N.C. Gen. Stat. §§ 97-61.1 through -61.7, however, our Legislature has set forth an exception to this general rule. The exception, which applies to employees who have received a diagnosis of silicosis and/or asbestosis, provides, in pertinent part:
(b) If the Industrial Commission finds . . . the employee has either asbestosis or silicosis or if the parties enter into an agreement to the effect that the employee has silicosis or asbestosis, it shall by order remove the employee from any occupation which exposes him to the hazards of asbestosis or silicosis, and if the employee thereafter engages in any occupation which exposes him to the hazards of asbestosis or silicosis without having obtained the written approval of the Industrial Commission as provided in G.S. 97-61.7, neither he, his dependents, personal representative nor any other person shall be entitled to any compen *415 sation for disablement or death resulting from asbestosis or silicosis; provided, that if the employee is removed from the industry the employer shall pay or cause to be paid as in this subsection provided to the employee affected by such asbestosis or silicosis a weekly compensation equal to sixty-six and two-thirds percent (66 2/3%) of his average weekly wages before removal from the industry, but not more than the amount established annually to be effective October 1 as provided in G.S. 97-29 or less than thirty dollars ($30.00) a week, which compensation shall continue for a period of 104 weeks. Payments made under this subsection shall be credited on the amounts payable under any final award in the cause entered under G.S. 97-61.6.
N.C.G.S. § 97-61.5(b) (1999) (emphasis added). The unambiguous language of section 97-61.5(b) requires an employee to be “removed” from his employment as a prerequisite to receiving the 104 weeks of compensation provided for in the statute. See State v. Green, 348 N.C. 588, 596 , 502 S.E.2d 819, 824 (1998) (when provisions of a statute are unambiguous, “there is no room for judicial construction and the courts must give the statute its plain and definite meaning”), cert. denied, 525 U.S. 1111 , 142 L. Ed. 2d 783 (1999). An employee who is no longer employed at the time he is diagnosed with asbestosis, therefore, may not, under the plain language of section 97-61.5(b), proceed with a workers’ compensation claim under this statute. Further, even assuming the language of section 97-61.5(b) is ambiguous, a reading of the statute that requires the Commission to order an employee removed from the industry prior to receiving 104 weeks of compensation comports with the Legislature’s intent when enacting the statute. See State v. Tew, 326 N.C. 732, 738 , 392 S.E.2d 603, 607 (1990) (courts must give effect to legislative intent when construing a statute). Sections 97-61.1 through -61.7 were enacted “to encourage employees to remove themselves from hazardous exposure to asbestos and to provide for employee rehabilitation.” Roberts v. Southeastern Magnesia and Asbestos Co., 61 N.C. App. 706, 710 , 301 S.E.2d 742, 744 (1983). An employee who is no longer employed in a position that causes harmful exposure need not be “removed” from his employment. Additionally, sections 97-61.1 through -61.7 set forth monitoring and examination procedures that an employee must undergo in order to receive compensation. These “monitoring and examination procedure [s] .. . presume [] medical diagnosis will occur during the hazardous employment.” Moore v. Standard Mineral Co., 122 N.C. App. 375, 378 , 469 S.E.2d 594, 596 (1996).
*416 The majority states that, although the plain language of section 97-61.5(b) provides “recovery under this section is predicated upon an employee’s removal from the industry,” the Legislature intended section 97-61.5(b) to apply even when no removal order has been issued. The majority cites N.C. Gen. Stat. § 97-61.7 in support of its holding. Section 97-61.7 permits an employee who has been compensated pursuant to section 97-61.5(b), with the approval of the Commission, to retain his employment with his employer and to waive any further compensation based on aggravation of his condition. N.C.G.S. § 97-61.7 (1999). Section 97-61.7, however, applies only after an employee has been allowed compensation under section 97-61.5(b), and section 97-61.7 does not alter the requirement of section 97-61.5(b) that the Commission order the employee “removed” from employment with employer.
Additionally, the majority cites Roberts in support of its holding. In Roberts , this Court held that an employee who remained in a job where he was exposed to asbestos was not precluded from receiving 104 weeks of compensation under section 97-61.5(b). Roberts, 61 N.C. App. at 710-11 , 301 S.E.2d at 744-45 . In Roberts , however, the Commission ordered the employee removed from employment that required contact with asbestos. Id. at 711 , 301 S.E.2d at 745 . Accordingly, Roberts does not stand for the proposition that an order of removal is not a prerequisite to recovery under section 97-61.5(b).
I acknowledge the “removal” requirement of section 97-61.5(b) raises concerns regarding whether an employee who chooses to remove himself from employment prior to a diagnosis of asbestosis should be precluded from receiving 104 weeks of compensation under section 97-61.5(b). For example, this statute may encourage employees who are exposed to asbestos to remain in their employment until they receive a diagnosis of asbestosis. These concerns, however, should not be resolved by this Court; rather, the proper forum for addressing these concerns is in the Legislature. See Moore, 122 N.C. App. at 380 , 469 S.E.2d at 598 (noting legislative action may be required to address asbestosis claims of employees who are no longer employed by their employers at the time of diagnosis). Accordingly, I would reverse the opinion and award of the Commission and hold that because plaintiff was not employed by defendant at the time of his diagnosis and, therefore, was not “removed” from his employment pursuant to section 97-61.5(b), section 97-64 provides plaintiffs sole remedy for his alleged asbestos-related disorder.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9856088. Public record. Not legal advice.