Expert and Fact Witness Evidence Establishes Last Day of Exposure for UPS Worker in Workers’ Compensation Commission Award Court of Appeals of North Carolina, May 1, 2018

NORTH CAROLINA — The plaintiff filed an action under North Carolina Workers’ Compensation for alleged development of mesothelioma by her decedent. Mr. Penager worked as a driver for United Parcel Services (UPS) from approximately 1967-98. It was alleged by the plaintiff that Mr. Penegar drove tractor trailers each day and would walk through the mechanic shop after his shift where workers were using compressed air to clean out dust from brake jobs. The Commission found that the plaintiff’s last date of injury from asbestos occurred while working for UPS. The Commission awarded the plaintiff “compensation for all of Decedent’s medical expenses associated with the diagnosis of his mesothelioma, total disability compensation, burial expenses and death benefits.”

The defendant filed an appeal and took the position that the evidence did not support the finding as to last date of injury. The plaintiff appealed the Deputy Commissioner’s finding of his weekly wage.

The court reviewed the evidence and noted that two co-worker mechanics testified as to the use of asbestos containing brakes, dust and a lack of masks during the relevant years. Additionally, several experts testified as to causation and risk. The defendants then took the position that the commission erred by not taking into account the plaintiff’s exposures to asbestos from subsequent work. Relying on narrow construction of Worker’s Compensation Act cases, the court flatly rejected that argument. Moreover, the Rutledge case illustrated that there is no requirement for the plaintiff to show how “much each exposure resulted in the disease” according to the court. Finally, the court stated that the burden to show subsequent exposure shifts to the employer in the absence of such evidence.

The plaintiff also took exception with the Deputy Commissioner’s calculation of the plaintiff’s weekly wage. The court noted the Commission has the authority to revise fact findings made by the Deputy Commission. The plaintiff argued that the Reed decision limited the scope of the review. However, the court disagreed and stated that Reed dealt with an issue first raised on appeal and was not applicable to the instant matter. Accordingly, the court affirmed the Commission’s award as to the last date of exposure. The court affirmed the Commission’s recalculation of weekly wage and dismissed the remaining appeal on maximum commission rate as moot.

Read the full decision here.


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