N.C. SC: Insurer was 'responsible carrier' for worker's asbestosis

Jessica M. Karmasek Jun. 22, 2012, 1:55pm

Supreme Court Chief Justice Sarah Parker


RALEIGH, N.C. (Legal Newsline) - The North Carolina Supreme Court ruled last week that the state's Industrial Commission was correct in determining that an insurance company was the responsible carrier for a plaintiff's asbestosis.

In its June 14 opinion, the Court reversed a November 2011 decision by a majority of the state Court of Appeals as to the appealable issue of right -- that is, whether the commission properly found and concluded that defendant Argonaut Insurance was the carrier on the risk for Davis Rex Mauldin's disease.

Asbestosis is a lung disease that occurs from breathing in asbestos fibers.

In particular, breathing in asbestos fibers can cause scar tissue, or fibrosis, to form inside the lung. Scarred lung tissue does not expand and contract normally.

How severe the disease is depends on how long the person was exposed to asbestos and the amount he or she breathed in. Often, people do not notice symptoms for 20 years or more after the asbestos exposure.

The state's high court, in its two-page per curiam opinion, pointed to a separate opinion filed Nov. 15, 2011 by Court of Appeals Judge Cheri Beasley. Beasley concurred in part and dissented in part.

"I join the majority in affirming the commission's opinion and award as to plaintiff's claims for lung cancer and pleural plaquing. I also agree that there is sufficient evidence that Argonaut was the responsible carrier with respect to plaintiff's laryngeal cancer and that we must remand for further findings and that we must reverse and remand on the issue of plaintiff's average weekly wage," Beasley wrote.

"However, after careful review of the record, I believe the commission's determination that defendant Argonaut was the responsible carrier for plaintiff's asbestosis was supported by
competent evidence.

"Accordingly, I would affirm the commission's opinion and award as to Argonaut's responsibility for plaintiff's asbestosis and the resulting damage to his lungs."

Argonaut and fellow defendant A.C. Corporation -- Mauldin's employer -- had appealed from the commission's decision and award finding Argonaut was the carrier on the risk for Mauldin's asbestos-related occupational illnesses, the damage to his organs and his resulting total disability.

Mauldin worked as a welder and pipefitter for A.C. He was employed by the company in 1971, from 1976 to 1977 and again from March 1980 to June 1997.

He replaced and performed maintenance work on pipes, boilers, and heating and air conditioning units for various clients throughout the country that contracted with A.C. for such services.

In March 2008, Mauldin filed a workers' compensation claim alleging that his asbestosis and lung cancer were the result of his occupational exposure to asbestos.

The state's Industrial Commission awarded compensation of $754 per week beginning July 1, 1997, $40,000 for damage to Mauldin's lungs from lung cancer and asbestosis, and $20,000 for damage to his lymph nodes from cancer to the lymph nodes.

The commission also concluded that Mauldin was entitled to medical treatment incurred or to be incurred related to his asbestosis, laryngeal cancer, lung cancer, pleural plaquing and lymph node cancer.

Argonaut and A.C. appealed the decision to the Court of Appeals.

The majority found no error with respect to the commission's decision regarding Mauldin's lung cancer, lymph node cancer and pleural plaquing.

However, based on its review of the record, it held that the evidence did not support the commission's determination that Argonaut was the responsible carrier for Mauldin's asbestosis.

"Further, while the record would support a determination that Argonaut is the responsible carrier with respect to plaintiff's laryngeal cancer, the commission failed to make findings of fact sufficient to support its conclusion of law on that issue," the majority wrote.

It said the commission also failed to make adequate findings of fact and conclusions of law as to Mauldin's average weekly wage.

However, Beasley argued that the commission was "in the best position" to examine Mauldin's testimony and "the weight it should be accorded."

"Because I would affirm the finding that Argonaut is the responsible carrier for plaintiff's asbestosis, it follows that I would hold Argonaut responsible for the damage to his lungs resulting from the asbestosis," she wrote.

"Accordingly, I would also hold Argonaut liable for the entirety of the award of $40,000 for damage for plaintiff's lungs resulting from his asbestosis and lung cancer."

The Supreme Court, which sided with Beasley as to the asbestosis, said the remaining issues addressed by the appeals court were not properly before it.

It remanded the case to the Court of Appeals for remand to the commission.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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