Asbestos Experience and Successes
The North Carolina Court of Appeals issued an important opinion addressing workers' compensation asbestos issues in Childress v. Fluor Daniel, Inc. and Kemper Insurance Co, No. COA03-107, opinion filed February 3, 2004. Wallace & Graham attorneys Mona Lisa Wallace and Edward L. Pauley were involved in obtaining this important decision.
The case involved an appeal by the Defendants, Fluor Daniel, Inc., and Kemper Insurance Company, from an Opinion and Award of the North Carolina Industrial Commission that awarded the plaintiff/victim, Jessie Bill Childress, forty thousand dollars for permanent injury to his lungs and an additional twenty thousand dollars for permanent injury to his colon.
Mr. Childress was employed by Daniel International Corporation (Fluor Daniel's predecessor) at the DuPont Facility in Brevard, North Carolina during 1975-78. He was exposed to asbestos while working at the Dupont facility.
Plaintiff presented expert medical testimony which showed that he had colon cancer and asbestosis in both lungs. This testimony linked these medical conditions to his workplace exposure to asbestos.
On 8 May 1997, plaintiff filed a Form 18B alleging asbestosis and seeking workers' compensation benefits. He later amended his Form 18B to include a claim for colon cancer. The Defendants denied liability.
On April 16, 2002, the Full Commission awarded Mr. Childresss the sum of twenty thousand dollars for permanent injury to his colon, twenty thousand dollars for permanent injury to his left lung, and twenty thousand dollars for permanent injury to his right lung. The Commission further directed that defendants pay all medical expenses incurred as a result of asbestosis and colon cancer.
The Defendants appealed the award to the North Carolina Court of Appeals on September 25, 2002.
On appeal, the Court remarked that the purpose of the NC Workers' Compensation Act is not only to provide a swift and certain remedy to an injured worker. The Act also provides for subrogation by employers of recovery from third parties. However, the Industrial Commission only acquires jurisdiction over subrogation issues after a workers' compensation claim is settled or a final award has been entered.
The Court stated that an employer's right to a subrogation lien exists at the outset of a workers' compensation case. An employer's subrogation lien is not waived by failure to settle or obtain a final award prior to payment of third-party settlement proceeds. However, the employer's right to subrogation does not vest until the workers' compensation case is settled or an award becomes final. The Industrial Commission does not have jurisdiction over the employer's subrogation claim until an award “final in nature” is entered.
The Court found that a final award had not yet been entered in this matter, because although the Full Commission entered an Opinion and Award, that award was appealed by the defendants. Thus, the award was not final in nature, and the Industrial Commission did not have jurisdiction over the defendants' subrogation claim. Therefore, the Industrial Commission correctly refused to stay the effect of its Opinion and Award on the basis of defendants' subrogation claims.
The defendants also argued that the Industrial Commission erred in awarding plaintiff forty thousand dollars for his lung damage. The Court disagreed, finding the Commission’s award of forty thousand dollars for permanent damage to both of plaintiff's lungs was appropriate.
The defendants also argued that the Industrial Commission erred in holding that a disability need not be proven in order for section 97-31(24) of the North Carolina Workers' Compensation Act to apply. The Court of Appeals found that the Commission ruled correctly. The Court stated that Section 97-31 is a schedule of injuries that allows for compensation even if a claimant does not demonstrate loss of wage-earning capacity. Because losses included in the schedule are conclusively presumed to diminish wage-earning ability, the Industrial Commission may enter an award pursuant to section 97-31 without finding that the employee is disabled.