Mauldin v. A.C. Corp.

719 S.E.2d 110, 217 N.C. App. 36, 2011 N.C. App. LEXIS 2336
CourtCourt of Appeals of North Carolina
DecidedNovember 15, 2011
DocketCOA11-119
StatusPublished
Cited by1 cases

This text of 719 S.E.2d 110 (Mauldin v. A.C. Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mauldin v. A.C. Corp., 719 S.E.2d 110, 217 N.C. App. 36, 2011 N.C. App. LEXIS 2336 (N.C. Ct. App. 2011).

Opinions

GEER, Judge.

Defendants Argonaut Insurance and A.C. Corporation appeal from an opinion and award finding that Argonaut was the carrier on the risk for plaintiffs asbestos-related occupational illnesses, the damage to his organs, and his resulting total disability. We have found no error with respect to the Commission’s decision regarding plaintiff’s lung cancer, lymph node cancer, and pleural plaquing. Based on our review of the record, however, we hold that the evidence does not support the Commission’s determination that Argonaut was the responsible carrier for plaintiff’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. Finally, the Commission failed to make adequate findings of fact and conclusions of law as to plaintiff’s average weekly wage. We, therefore, affirm in part and reverse and remand in part.

Facts

Plaintiff began working for defendant employer A.C. Corporation in 1971 as a welder and pipefitter. He was employed by A.C. Corporation in 1971, from 1976 until 1977, and again from 3 March 1980 until June 1997. Plaintiff replaced and performed maintenance work on pipes, boilers, and heating and air conditioning units for various clients [38]*38throughout the country that contracted with A.C. Corporation for such services. For the last 10 years of his employment, plaintiff was a foreman. In this position, plaintiff continued to perform the same job but had the added responsibility of supervising other A.C. Corporation employees.

In performing his job, plaintiff was required to climb around and stand or lie on insulation covering pipes and equipment. When repairing the pipes and equipment, he would have to remove insulation, which resulted in his being covered in a significant amount of dust. Plaintiff also replaced gaskets located at the joints of pipes, which generated dust from the insulation. Plaintiff, along with his supervisors and co-workers believe most of the insulation and some of the gaskets he worked with and around contained asbestos.

Plaintiff was diagnosed with laryngeal cancer in 1997. As a result, he underwent surgery to remove his larynx and portions of his neck. This surgery left him unable to talk without the assistance of a mechanical voice box. He breathes through a “stoma,” which is a hole in his neck. A.C. Corporation told plaintiff that he could no longer perform his job because he could not communicate effectively. Plaintiff has not worked since 1997.

Plaintiff was not advised by any doctor that his laryngeal cancer was related to his employment with A.C. Corporation until 2007. In the meantime, plaintiff applied for and was approved for social security disability.

In 2007, plaintiff was diagnosed with lung cancer and underwent radiation and chemotherapy. He is still receiving treatment for lung cancer. During his treatment, chest x-rays revealed abnormalities in addition to the cancer. His treating physicians then diagnosed him with asbestosis.

On 6 March 2008 plaintiff filed a workers’ compensation claim alleging that his asbestosis and lung cancer were the result of his occupational exposure to asbestos. Plaintiff subsequently filed an amended claim alleging that his asbestosis, lung cancer, and laryngeal cancer were all related to his asbestos exposure. A.C. Corporation had insurance coverage with several different providers over the course of plaintiff’s employment. All defendants denied plaintiff’s claim.

Following a hearing on 15 June 2009, the deputy commissioner filed an opinion and award on 25 March 2010 finding that plaintiffs laryngeal cancer, lung cancer, lymph node cancer, asbestosis, and [39]*39pleural plaques were compensable occupational diseases and that plaintiff has been totally disabled as a result of his laryngeal cancer since 1 July 1997. The deputy commissioner further found that defendant Argonaut is the responsible carrier. The deputy commissioner awarded permanent total disability in the amount of $786.00 per week beginning 1 July 1997, $20,000.00 for damage to plaintiffs lungs due to lung cancer, $20,000.00 for lung damage from asbestosis, and $10,000.00 for damage to four lymph nodes resulting from lymph node cancer. Defendants Argonaut and A.C. Corporation appealed to the Full Commission.

On 28 September 2010, the Full Commission entered an opinion and award affirming and modifying the opinion and award of the deputy commissioner. Like the deputy commissioner, the Full Commission concluded that plaintiffs laryngeal cancer, lung cancer, lymph node cancer, asbestosis, and pleural plaques were all compensable occupational diseases and that plaintiff has been totally disabled pursuant to N.C. Gen. Stat. § 97-29 as a result of his laryngeal cancer since 1 July 1997. The Commission further found that Argonaut is the responsible carrier and liable for payment of compensation pursuant to N.C. Gen. Stat. § 97-57.

The Commission modified the deputy commissioner’s opinion and award by awarding compensation of $754.00 per week beginning 1 July 1997, $40,000.00 for damage to plaintiff’s lungs from lung cancer and asbestosis, and $20,000.00 for damage to plaintiff’s lymph nodes from cancer to the lymph nodes. The Commission also concluded that plaintiff is entitled to medical treatment incurred or to be incurred related to his asbestosis, laryngeal cancer, lung cancer, pleural plaquing, and lymph node cancer pursuant to N.C. Gen. Stat. §§ 97-25 and 97-25.1. Defendants Argonaut and A.C. Corporation timely appealed to this Court.

Discussion

“[AJppellate courts reviewing Commission decisions are limited to reviewing whether any competent evidence supports the Commission’s findings of fact and whether the findings of fact support the Commission’s conclusions of law.” Deese v. Champion Int’l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). The “findings of fact are conclusive on appeal if supported by competent evidence. This is true even if there is evidence to support a contrary finding.” Nale v. Ethan Allen, 199 N.C. App. 511, 514, 682 S.E.2d 231, 234, disc. review denied, 363 N.C. 745, 688 S.E.2d 454 (2009).

[40]*40I. XArgonaut’s Liability for Plaintiff's Compensable Conditions

A. Plaintiff’s Asbestosis Claim

Defendant Argonaut first challenges the Commission’s determination that Argonaut was the responsible carrier for plaintiff’s asbestosis. N.C. Gen. Stat. § 97-57 (2009) sets out the basis for determining which carrier is responsible for compensation due for occupational diseases:

In any case where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, which was on the risk when the employee was so last exposed under such employer, shall be liable.

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Related

Mauldin v. A.C. Corp.
719 S.E.2d 110 (Court of Appeals of North Carolina, 2011)

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Bluebook (online)
719 S.E.2d 110, 217 N.C. App. 36, 2011 N.C. App. LEXIS 2336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mauldin-v-ac-corp-ncctapp-2011.