DocketNumber: I.C. NO. 834977
Judges: <center> OPINION AND AWARD for the Full Commission by THOMAS J. BOLCH, Commissioner, and DISSENT by DIANNE C. SELLERS, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 2/3/2003
Status: Precedential
Modified Date: 7/6/2016
2. At all relevant times, an employment relationship existed between plaintiff and defendant.
3. Defendant was duly self insured.
4. Plaintiffs income during the fifty-two (52) weeks prior to his diagnosis on December 9, 1997, was $77,795.03, which is sufficient to produce the maximum compensation rate for 1997, $512.00. By separate stipulation by counsel for both parties on August 13, 2002, it is stipulated that plaintiff's wages were sufficient to earn the maximum compensation benefits available under the North Carolina Workers' Compensation Act in the year 2000, which was $588.00.
5. Plaintiff was last injuriously exposed to asbestos during his employment with defendant. Plaintiff was exposed to asbestos for thirty (30) days within a seven month period as set forth in N.C. Gen. Stat. §
6. Plaintiff does suffer from an occupational disease, asbestosis. This diagnosis has been confirmed by Dennis Darcey, M.D., on December 10, 1997. A member of the North Carolina Occupational Disease Panel has also confirmed this diagnosis. Plaintiff's medical records have been stipulated into evidence.
7. Plaintiff contends that he is entitled to an award of a 10% penalty pursuant to the provisions of N.C. Gen. Stat. §
8. Should plaintiff be awarded compensation pursuant to N.C. Gen. Stat. § 9761.5(b), the deputy commissioner may include in the Opinion and Award language removing plaintiff from further exposure pursuant to N.C. Gen. Stat. § 97-62.5(b).
9. Should N.C. Gen. Stat. §§
10. The issues before the Industrial Commission are: (1) whether N.C. Gen. Stat. §§
2. Defendant manufactures paper and paper products, including paper for crafts, bags, boxes, and pulp for baby diapers. The approximate size of defendant's plant in Plymouth, North Carolina, is 3/4 of a mile long. The entire facility is built on approximately 350 acres and encompasses about 20 different buildings. The newest building was built in the 1960s and the vast majority of the insulation used in the original construction of the buildings contained asbestos. Steam-producing boilers are used at the facility, along with hundreds of miles of steam pipes covered with asbestos insulation. The heat coming off the steam pipes is used, among other things, to dry the wet pulp/paper.
3. Plaintiff held various jobs for defendant, first working as a chip car unloader and later as a general laborer in the wood chip area. In 1972, plaintiff started in the maintenance department as a class-A apprentice, where he had to clean up, change asbestos-containing break pads, and remove asbestos insulation and materials.
4. Plaintiff was subsequently moved to class-C, where he would occasionally wear asbestos gloves when he worked. His job duties involved putting asbestos-based blankets onto dryers. Plaintiff worked in the power and recovery area and would remove asbestos insulation from beams to enable scaffolding to be built atop the beams. Plaintiff was also exposed to asbestos when he worked on the extension ductwork, which involved wrapping asbestos insulation around the ducts.
5. During his employment, plaintiff was exposed to asbestos at various places throughout the plant. Defendant did not provide plaintiff with any type of respiration device to protect him from exposure to asbestos. On occasion, plaintiff only wore a respirator to protect himself from sulfur fumes.
6. Plaintiff was exposed to asbestos-containing materials on a regular basis for more than thirty working days or parts thereof within seven consecutive months from 1967 to the present.
7. The parties submitted for consideration by the Full Commission the following medical records and reports of plaintiff by the following:
a. The medical report of Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University, dated December 10, 1997. It was the opinion of Dr. Darcey, and the Full Commission finds as fact, that plaintiff has a diagnosis of asbestos-related pleural changes and asbestosis.
b. The medical report of Dr. Curseen, a pulmonologist at Lake Norman Center for Breathing Disorders who saw plaintiff on September 12, 1997, for an evaluation. After a full physical evaluation and performance of pulmonary function tests, he reported mild pleural and interstitial changes, findings which would be consistent with mild asbestosis in the appropriate clinical situation.
c. A CT scan and chest x-ray dated September 12, 1997, interpreted by Dr. James C. Johnson of Piedmont Radiology in Salisbury, a radiologist and B-reader. His report noted parenchymal abnormalities consistent with pneumoconiosis and bilateral opacities of a 1/0 profusion.
d. Dr. Phillip Lucas, a NIOSH B-reader and radiologist, reviewed the chest x-ray dated September 12, 1997. Overall, it his opinion, and the Full Commission finds as fact, that there exist bilateral interstitial fibrotic changes consistent with asbestosis in a patient who has had an adequate exposure history and latent period.
e. The September 27, 1997, x-ray was also reviewed by Dr. Fred Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader. He reported, and the Full Commission finds as fact, that plaintiff had parenchymal abnormalities consistent with pneumoconiosis and bilateral opacities of a 1 /0 profusion.
f. An advisory medical evaluation report written by Dr. Blake A. Spain, a panel physician who examined plaintiff at the request of the North Carolina Industrial Commission on February 11, 1999. Dr. Spain concluded that plaintiff had significant asbestos exposure and possible early changes consistent with mild asbestosis. He recommended a clinical follow up to monitor possible progression of asbestosis.
8. Plaintiff does suffer from the occupational diseases of asbestosis and asbestos-related pleural disease as a result of his many years of asbestos exposure while employed by the defendant. His pulmonary impairment is permanent and likely to progress. Plaintiff would benefit from medical monitoring, evaluation, and some treatment in the future as a result of his asbestosis and asbestos-related pleural disease. Further, medical monitoring is reasonably necessary due to his increased risk of developing lung and other asbestos-related cancers.
9. Plaintiffs wages were sufficient to earn the maximum compensation benefits available under the North Carolina Workers' Compensation Act in the year 2000, which was $588.00. Deputy Commissioner Jones ordered plaintiff removed from further exposure to asbestosis by his Opinion and Award filed January 24, 2000.
2. Plaintiff was last injuriously exposed to the hazards of asbestos dust while employed by defendant, and for as much as 30 days or parts thereof, within seven consecutive months, which exposure proximately augmented his asbestosis. N.C. Gen. Stat. §
3. N.C. Gen. Stat. §
4. While it has been determined that a retiree who is no longer employed by the asbestos-exposing industry is not entitled to an order of removal and the subsequent award because he no longer faces the possibility of exposure, see Austin v. General Tire,
5. The legislative intent of Sections
6. Pursuant to N.C. Gen. Stat. §
7. The issue of the constitutionality of N.G. Gen. Stat. §§
8. Plaintiff is entitled to have defendant pay for such medical expenses incurred or to be incurred as a result of plaintiff's asbestos-related pleural disease and asbestosis as may be required to monitor, provide relief, effect a cure, or lessen plaintiff's period of disability. N.C. Gen. Stat. §§
9. Plaintiff is entitled to undergo subsequent examinations as provided by law, pursuant to the provisions of N.C. Gen. Stat. §§
10. Defendant stipulated that, should the Industrial Commission determine that plaintiff contracted the occupational disease asbestosis during the course and scope of his employment with defendant, defendant would waive further proof needed under N.C. Gen. Stat. §
2. Defendant shall pay an additional weekly sum of 5% of the weekly compensation awarded in Paragraph I above to plaintiff, which shall also be paid in a lump sum. As per agreement of the parties, defendant shall also pay a 10%, late penalty pursuant to N.C. Gen. Stat. §
3. Defendant additionally shall pay interest in the amount of 8% per annum on this award from the date of the initial hearing on this claim, October 12, 1999, until paid in full. The interest shall be paid in full to the claimant and is not subject to attorneys' fees. N.C. Gen. Stat. §
4. Defendant shall pay all medical expenses incurred or to be incurred when bills for the same have been approved, in accordance with the provisions of the Act.
5. Plaintiff shall undergo additional examinations as provided by law.
6. A reasonable attorney's fee of 25% of the compensation due plaintiff as was awarded in paragraphs I and 2 above is approved for plaintiffs counsel. Defendant shall deduct 25% of the lump sum otherwise due plaintiff shall pay such 25% directly to plaintiffs counsel.
7. The Commission hereby retains jurisdiction in this matter to address the issue of permanent impairment, as plaintiff has not undergone the additional panel examination as required by law for such determination. Upon completion of such examinations, should the parties be unable to agree on what additional compensation, if any, is due, the parties may request a hearing before this Commission on this matter.
8. Defendant shall pay the costs of this proceeding.
This 14th day of October 2002.
S/_____________ THOMAS J. BOLCH COMMISSIONER
CONCURRING:
S/__________________ BERNADINE S. BALANCE COMMISSIONER
DISSENTING:
S/_______________ DIANNE C. SELLERS COMMISSIONER
Honeycutt v. Carolina Asbestos Co. ( 1952 )
Roberts v. Southeastern Magnesia & Asbestos Co. ( 1983 )
Jones v. Weyerhaeuser Co. ( 2000 )
Clark v. ITT Grinnell Industrial Piping, Inc. ( 2000 )
Jones v. Weyerhaeuser Company ( 2001 )
Austin v. Continental General Tire ( 2001 )
Austin v. Continental General Tire ( 2000 )
Barber v. Babcock & Wilcox Construction Co. ( 1991 )