In Maudlin v. A.C. Corp et al., the North Carolina Court of Appeals addressed a multi-pronged asbestos case.  The case involved a man who worked as a pipefitter for more than 19 years at the company.  He was exposed to insulation that contained asbestos while preforming his work, was diagnosed with laryngeal cancer in 1997, and was forced to stop working due to his disabilities following surgery.  He was later diagnosed, in 2007, with lung cancer, lymph node cancer, asbestosis, and pleural plaques.  The North Carolina Industrial Commission concluded that these were compensable occupational diseases and that plaintiff was totally disabled as a result since July 1997.  The Commission also concluded that Argonaut was the insurance company covering the risk and thus responsible for compensating the employee for these diseases.  Argonaut appealed the commission’s Opinion and Award.

The Court agreed with the Commission with respect to Plaintiff’s lung cancer, lymph node cancer, and pleural plaquing.  However the Court reversed “the Commission’s determination that Argonaut was the responsible carrier as to plaintiff’s claim for asbestosis” and remanded to the Commission to determine which carrier was holding the risk during the time Plaintiff was last exposed to asbestos for “30 working days, or parts thereof, within seven consecutive calendar months” and thus responsible for Plaintiff’s asbestosis with respect to N.C. Gen. Stat. § 97-57.  The Court also sent back to the Commission for further findings of fact the issues of the apportionment of the award for Plaintiff’s lung damage, the carrier responsible for Plaintiff’s laryngeal cancer, and the determination of Plaintiff’s average weekly wage.  This case is difficult because when determining which carrier was covering the risk for the Plaintiff’s occupational disease, the Commission must rely on work records and expense reports from years ago that were not always accurate while still meeting the requirements of  N.C. Gen. Stat. § 97-57.

Categories: Judicial Decisions Tags: Appeals, Asbestos, Carrier on Risk, Case Commentary, Compensable Injury, Industrial Commission, NC Court of Appeals, Occupational Disease, Workers' Compensation

The North Carolina Court of Appeals published two decisions on workers’ compensation this month.  The first case, Kingston v. Lyon Construction, concerns workers’ compensation liens and third-party recoveries.  The plaintiff was exposed to asbestos on the job and developed illness as a result.  He was awarded workers’ compensation benefits, and brought and settled tort cases against manufacturers of the asbestos.  He then brought a motion to determine the workers’ compensation liens under N.C.G.S. § 97-10.2(j).  The Court of Appeals affirmed the trial court’s conclusions that the motion was proper even though only some of the third-party cases had been resolved, and that the workers’ compensation lien should be eliminated entirely because the third-party recoveries were reduced due to bankruptcies.

The second case, Nobles v. Coastal Power & Electric, concerns an issue of suitable employment.  The Industrial Commission had awarded temporary total disability benefits up to the time of the plaintiff’s maximum medical improvement, but did not find him disabled afterward.  The primary issue regarding disability concerned the defendant’s offer of a new position to plaintiff to accommodate his injury.

“The Workers’ Compensation Act provides that an injured employee is not entitled to compensation if he unjustifiably ‘refuses employment procured for him suitable to his capacity.’” N.C.G.S. § 97-32.  “Suitable employment is defined as any job that a claimant is capable of performing considering his age, education, physical limitations, vocational skills, and experience.”  However, “employers may not avoid paying compensation merely by creating for their injured employees makeshift positions not ordinarily available in the market.”  In this case, the Court upheld the Commission’s findings that the position offered to the plaintiff was suitable, and was not make-work because it had been offered previously and subsequently to others.

Categories: Judicial Decisions Tags: Asbestos, Case Commentary, Disability Benefits, Industrial Commission, Liens, NC Court of Appeals, Personal Injuries, Suitable Employment, Third-party Suits, Workers' Compensation

On September 21, 2010, the North Carolina Court of Appeals released its latest batch of opinions, which included one published case on workers’ compensation.  In Pope v. Johns Manville, the Court issued a second opinion in this case after granting defendants’ petition for rehearing.  The Court’s first opinion in this case, issued earlier this year, affirmed the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50′s and 60′s and that he was disabled due to his asbestosis.  In this second opinion, the Court reconsidered the Commission’s decision on how much disability pay the plaintiff was due.

The Commission had calculated the plaintiff’s average weekly wage (AWW) based on his earnings in 2003, the last year he worked.  Plaintiff was not diagnosed with asbestosis until 2005, after he had retired.  The Court held that because the plaintiff is considered “injured” on the date of his asbestosis diagnosis, his AWW must be calculated from that point.  Of course, because someone retired has no weekly wages, an exceptional method of measuring lost wages is probably appropriate under the fifth prong of the AWW definition of N.C. Gen. Stat. 97-2(5).  The Court remanded the case to the Commission to reconsider the AWW issue and make the appropriate findings to support a decision on the AWW question.

Categories: Judicial Decisions Tags: Asbestos, Asbestosis, Average Weekly Wage, Case Commentary, NC Court of Appeals, Workers' Compensation

Earlier this month, the North Carolina Court of Appeals issued several notable decisions.  In Soder v. Corvel Corp., the Court effectively reminded workers’ compensation litigants to timely file their appeals to the Industrial Commission.  In this case, after noticing his appeal of the Deputy Commissioner’s decision to the Full Commission, the plaintiff missed his deadline for filing his brief and Form 44 setting out his grounds for appeal.  The Full Commission dismissed the appeal because plaintiff’s brief was ultimately filed 21 days late, and the Court upheld the dismissal.  To make matters worse, plaintiff also failed to preserve his arguments that the Commission should have used its discretion to waive the deadline.

In Hawkins v. SSC Hendersonville Operating Company, the Court again addressed the locality rule for medical malpractice cases — the requirement that the plaintiff must produce an expert witness who can testify to a familiarity with the standards of practice in the same or a similar community as the defendant.  Although many medical fields effectively have a national standard of care, i.e. practices and standards that do not vary with geography, North Carolina remains bound to the old-fashioned locality rule.  In this case, plaintiff sought to establish the standard of care applicable to the care provided to her 86-year-old husband by defendant nursing home through the testimony of three medical experts.  Because these witnesses testified regarding a national standard of care rather than the standards of practice in the community in which defendant is located, the Court directed that judgment be entered for the defendant.

And in Pepper v. Norandal, USA, plaintiff appealed the denial of his workers’ compensation claim that he contracted asbestosis as a result of exposure to asbestos in the course of his employment with Norandal.  Several other co-employees had also brought similar claims, some of which were also decided by the Court on appeal too.  Here, the Industrial Commission found that plaintiff had indeed been exposed to asbestos in his employment, but found that he had not yet developed asbestosis.  The Court affirmed the decision.

Categories: Judicial Decisions Tags: Appeals, Asbestos, Asbestosis, Case Commentary, Industrial Commission, Locality Rule, Medical Malpractice, NC Court of Appeals, Nursing Home, Standard of Care, Workers' Compensation