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

In an opinion issued two weeks ago, Johnston v. Duke University Medical Center, the North Carolina Court of Appeals concluded that the plaintiff’s occupational disease workers’ compensation claim was time-barred.  The plaintiff had been a nurse at Duke, and developed several conditions in her left foot: plantar fasciitis, tarsal tunnel syndrome, and Achilles tendinopathy.  These conditions developed over several years from the 1990′s through 2005, but the plaintiff did not file this case until 2007.

N.C. Gen. Stat. 97-58 specifies the statute of limitations for occupational disease claims.  Under that provision, “the two-year period within which an occupational disease claim must be filed with the Commission … begins to run when the employee learns that he or she has a work-related disability stemming from that occupational disease.”  In this case, the Court found that because all of the plaintiff’s left foot conditions were continuous and interrelated, and that the plaintiff had been told by her physician that her condition had been caused by work as early as 2001, the plaintiff had missed the two-year deadline to file her claim.  The Court rejected the plaintiff’s contention that each different diagnosis should be treated as a separate possible claim.

Categories: Judicial Decisions Tags: Case Commentary, Duke University Medical Center, NC Court of Appeals, Occupational Disease, Statute of Limitations, Workers' Compensation

Last week, the North Carolina Court of Appeals issued two decisions on workers’ compensation.  In the first case, Jones v. Steve Jones Auto Group, the plaintiff was a general manager at auto dealerships who sought benefits due to mold exposure – an unlisted occupational disease.  Due to the dangerous mold in his office, the plaintiff developed serious respiratory ailments.  When, as in this case, an occupational disease is not one of those specifically listed in the Workers’ Compensation Act, one has to prove that “the employment exposed the worker to a greater risk of contracting the disease than the public generally” and that the employment “significantly contributed to, or was a significant causal factor in, the disease’s development.”

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Categories: Judicial Decisions Tags: NC Court of Appeals, Notice, Occupational Disease, Workers' Compensation