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.

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.

Based on testing at the workplace, the types of mold, the medical condition of the plaintiff, and the expert medical testimony, the Court found these criteria to be met and upheld the award of benefits.  The Court also rejected defendants’ strained arguments that the plaintiff’s problems were due to a “personal sensitivity” and that there wasn’t enough evidence of occupational mold exposure.

In the second case, Shorts v. The Mega Force Staffing Group (unpublished), the primary issue was whether the plaintiff gave sufficient notice of his injury to his employer.  Under the Act, an employee has to give his employer written notice of his injury by accident within 30 days, unless he has a “reasonable excuse” and the delay did not prejudice the employer.  The Commission had found “reasonable excuse” because it took the planitiff’s several months to properly diagnose him, and found no prejudice to the employer.  The Court upheld the findings, and the award to the plaintiff.