DocketNumber: I.C. NO. 921285
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: 2/26/2003
Status: Precedential
Modified Date: 7/6/2016
2. Defendant was duly self insured.
3. An employee-employer relationship existed between the parties at all relevant times. Plaintiff was employed by defendant at its facility in Plymouth, North Carolina, from November 1, 1965, to the date of the hearing before the deputy commissioner and continuing.
4. Plaintiff was last injuriously exposed to asbestos during plaintiff's employment with defendant, Weyerhaeuser Company, and specifically, that plaintiff was exposed to asbestos for thirty (30) days within a seven-month period, as set forth by N.C. Gen. Stat. §
5. 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.
6. Plaintiff has worked in a number of different areas in Defendant's plant, which include the boiler room, fine paper area, and the preventative maintenance shop. During the course of his employment, he was exposed to asbestos dust from insulation materials that were disturbed by co-workers working on pipes, boilers, and turbines. He also spent several years as a maintenance mechanic where he worked throughout the plant. During this time, he directly repaired boilers, turbines, and other machinery. The removal of the insulation by him and co-workers caused significant amounts of asbestos dust to be released into the environment. Defendant did not provide plaintiff with a respirator or any other form of airway protection to protect him from asbestos exposure.
7. Plaintiff's income during the fifty-two (52) weeks prior to his diagnosis on July 14, 1998, was $55,711.48, which is sufficient to produce the maximum compensation rate for 1998, $532.00. 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.
8. Plaintiff contends that he is entitled to an award of a 10% penalty pursuant to the provisions of N.C. Gen. Stat. §
9. The parties agreed further that should plaintiff be awarded compensation, the Commission may include language removing plaintiff from further exposure pursuant to N.C. Gen. Stat. §
10. The parties further agreed that should the Commission determine N.C. Gen. Stat. §§
11. The parties agreed that the only contested issues for determination are:
A. Does Plaintiff suffer from a compensable occupational disease and/or diseases? If so, what disease and/or asbestos-related diseases?
B. What benefits, monetary and/or medical, is Plaintiff entitled to receive, if any?
C. Whether plaintiff shall be entitled to attorney's fees for the unreasonable defense of this matter?
D. Does N.C. Gen. Statute §§
97-60 through97-61.7 apply to plaintiff's claim for benefits, and regardless, are these statutes in violation of the Constitutions of the United States and North Carolina?
12. On the issue of additional monetary benefits, plaintiff is entitled to undergo additional panel examinations as required by law. Upon completion of the additional examinations, should the parties be unable to agree on what additional compensation, if any, is due, the parties may request a hearing before the Commission on this matter.
13. The parties submitted to the Commission the medical records and reports of plaintiff by the following physicians:
A. The medical report of Dr. Dennis Darcey of the Division of Occupational Environmental Medicine of Duke University, dated July 14, 1998. It was the opinion of Dr. Darcey, and the Full Commission finds, that plaintiff has a clinical diagnosis of asbestosis and asbestos-related pleural changes based on plaintiff's history of exposure to asbestos with adequate latency to develop asbestosis; an ILO chest x-ray B-read showing pleural changes consistent with asbestos exposure and interstitial changes consistent with asbestosis; and a high resolution CT of the chest showing pleural changes consistent with asbestos exposure and interstitial changes consistent with asbestosis.
B. A CT scan and chest x-ray report dated October 25, 1997, interpreted by Dr. Fred Dula of Piedmont Radiology in Salisbury, a radiologist and B-reader. Overall, it was his opinion, and the Full Commission finds as fact, there are findings that would be consistent with asbestosis given a history of asbestos exposure.
C. Dr. Phillip Lucas, a NIOSH B-reader and radiologist, reviewed the chest x-ray dated October 25, 1997. Overall, it was his opinion, and the Full Commission finds as fact, that there are bilateral interstitial fibrotic changes consistent with asbestosis in a patient who had an adequate exposure history and latency period.
D. Dr. Richard C. Bernstein, a B-reader at Pulmonary Critical Care Medicine, reviewed the chest x-ray dated October 25, 1997. He reported both parenchymal abnormalities consistent with pneumoconiosis in the middle and lower lung zones with a profusion of 2/1.
E. A B-read report of a chest x-ray dated November 14, 1990, from Eastern Radiologists, Inc., by Dr. Weaver. The B-read report indicates that the radiologist interpreted the x-ray as having parenchymal abnormalities consistent with pneumoconiosis in the lower lung zones with a profusion of 1/0.
F. An Advisory Medical Evaluation Report written by Dr. Gregory Pape, a panel physician who examined plaintiff at the request of the North Carolina Industrial Commission on July 29, 1999. Dr. Pape conducted a full physical evaluation, performed pulmonary function tests, and reviewed other medical records including chest x-ray and CT scan reports. His overall impression was that based on plaintiff's symptoms, chest x-ray, CT scan, and slightly decreased diffusing capacity, plaintiff does have mild asbestosis.
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 has worked in a number of different areas in defendant's plant, which include the boiler room, fine paper area, and the preventative maintenance shop. During the course of his employment, he was exposed to asbestos dust from insulation materials that were disturbed by co-workers working on pipes, boilers, and turbines. He also spent several years as a maintenance mechanic where he worked throughout the plant. During this time, he directly repaired boilers, turbines, and other machinery. The removal of the insulation by him and co-workers caused significant amounts of asbestos dust to be released into the environment. Defendant did not provide plaintiff with a respirator or any other forms of protection against asbestos exposure.
4. 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 1965 to the date of the hearing before the Deputy Commissioner.
5. The medical report of Dr. Darcey from Duke University Medical Center, who physically examined plaintiff, concluded, and the Full Commission finds as fact, that he has asbestosis.
6. The chest film reports and/or deposition testimony of Drs. Lucas, Bernstein, Dula, and Weaver, who all interpreted the chest film of plaintiff, concluded, and the Full Commission finds as fact, that there were radiographic changes consistent with asbestosis.
7. The advisory medical report of Dr. Pape concluded, and the Full Commission finds as fact, that plaintiff has mild asbestosis.
8. Defendant failed to produce any conflicting medical evidence to refute the findings that plaintiff developed asbestosis as a result of his exposure to asbestosis while working for defendant.
9. Plaintiff has proven by the greater weight of the evidence that he has developed asbestosis, an occupational disease, as a result of exposure to asbestos while working for defendant, and that his employment placed him at an increased risk of developing asbestosis as compared to members of the general public. Further, he also suffers from asbestos-related pleural disease caused by his exposure to asbestos while working for defendant and his employment placed him at an increased risk of developing asbestosis as compared to members of the general public.
10. Plaintiff was last injuriously exposed to asbestos while in the employment of defendant and developed these diseases as a result of his many years of asbestos exposure while employed by defendant.
11. Plaintiff's pulmonary impairment is permanent and is 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.
12. 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. Deputy Commissioner Glenn ordered plaintiff removed from further exposure to asbestosis by his Opinion and Award filed November 21, 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 1 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, March 23, 2000, 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 1 and 2 above is approved for plaintiff's counsel. Defendant shall deduct 25% of the lump sum otherwise due plaintiff shall pay such 25% directly to plaintiff's 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 16th day of October, 2002.
S/_____________ THOMAS J. BOLCH COMMISSIONER
CONCURRING:
S/___________________ BERNADINE S. BALLANCE 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 )