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

The North Carolina Court of Appeals recently issued several workers’ compensation opinions, though they were all unpublished and did not break any new ground.  In Pope v. Johns Manville, the Court upheld the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50′s and 60′s, that the testimony of plaintiff’s rebuttal expert was properly considered, and that the plaintiff was disabled due to his asbestosis under N.C.G.S. 97-54.  In Bricker v. Rhoney Furniture House, the Court upheld the Commission’s conclusion that the plaintiff had shown that she had a compensable change of condition under N.C.G.S. 97-47, and that she was now totally disabled instead of partially disabled due to her back pain and depression.

In Sperry v. Koury Corp, the Court upheld the Commission’s conclusion that the plaintiff had failed to show that she was totally disabled.  Finally, in Arce v. Mt. Wood Forestry, the Court concluded that the plaintiff — a paraplegic due to a car accident — was entitled to retroactive and prospective payment for attendant care provided by his family, handicapped accessible housing if his landlord will not agree to modification of his current housing, and other elements of a life care plan prepared by a certified life care planner.

Categories: Judicial Decisions Tags: Asbestosis, Attendant Care, Case Commentary, Change of Condition, Industrial Commission, Life Care Plan, NC Court of Appeals, Workers' Compensation