Huffman v. Moore County
| Decision Date | 21 December 2010 |
| Docket Number | No. 481105,No. 500200,No. 480967,No. 509087,No. 564609,No. 924348,No. 481108,No. 521226,NO. COA09-1324,COA09-1324,480967,564609,500200,481108,481105,509087,924348,521226 |
| Parties | FRANCES HUFFMAN, ROGER D. KENNEDY, MARILYN DAWN KIDD, THOMAS P. MARSH, FRANKIE McCASKILL, DEBORAH K. ROGERS, SHARON P. SCOTT, Employees, Plaintiff-Appellants v. MOORE COUNTY, Employer; SEDGWICK OF THE CAROLINAS, INC. Carrier, Defendant-Appellees. |
| Court | North Carolina Court of Appeals |
Appeal by Plaintiffs from Opinion and Award entered 20 April 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 26 April 2010.
Lennon & Camak, P.L.L.C., by George W. Lennon and Michael W. Bertics, for plaintiff-appellants.
Teague Campbell Dennis & Gorham, L.L.P., by George W. Dennis, III, and J. Matthew Little for defendants-appellees.
Plaintiffs appeal from an Opinion and Award entered by Chair Pamela T. Young and concurred in by Commissioners Dianne C. Sellers and Christopher Scott denying their request for workers' compensation benefits based on a determination that Plaintiffs had failed to establish that they contracted an occupational disease while working for Defendant Moore County. On appeal, Plaintiffscontend that the Commission failed to comply with the mandate issued by this Court in deciding a previous appeal, made factual findings that lacked adequate record support, applied an incorrect legal standard, and relied on incompetent medical testimony. After carefully considering Plaintiffs' challenges to the Commission's order in light of the record and the applicable law, we conclude that the Commission's order should be affirmed.
1. Design and History of the Community Services Building
Defendant Moore County converted the Community Services Building (CSB) into county employee offices after purchasing it from Ren Electronics in the late 1980s. A one story structure constructed on a concrete slab that initially featured fixed windows, the building originally utilized a septic system, components of which were located beneath the building. Use of the septic system was discontinued when the CSB was connected to a municipal water and sewer system several years before the County began using the building.
Ren Electronics manufactured electrical wiring assemblies. According to Budd Hill Shirer, who worked for Ren Electronics at the CSB from 1980 until 1982, a large number of chemicals were used during the manufacturing process, including Trichloroethylene, Methyl Ethyly Ketone, Toluene, Krylon sprays, and various cleaning products. Mr. Shirer testified that there were "no procedures for proper handling of chemicals" and that, "at the end of the day, they were disposed of in floor drains, sinks, urinals, [and] toilets," all of which connected to the septic system, and "outside the doorway."
The heating, ventilating, and air conditioning system in the CSB was a closed loop. Open floor drains led to the septic system. The septic system vent went into the open area between the suspended tile ceiling and the roof instead of exiting the building. A stale smell reminiscent of sewage could be detected where the vent stack was located. The HVAC system did not have a fresh air return. On the contrary, "the air conditioner had a free return on it, so if any-any fumes or anything, it had to be pulling it through the air conditioner and blowing it right back out into the cubicles." According to Robert Lake, an HVAC technician, negative air pressure from the HVAC system could "draw stuff through the [septic] trap" into the CSB, and heat could evaporate the tanks in the septic tank vents so as to allow septic gas to pass without obstruction.
Robert Privott, a former County property manager, confirmed that pesticides had been sprayed in the CSB. Antex Exterminating had contracted with Defendant Moore County to apply pesticides in approximately 2 0 of the County's buildings on a monthly basis. Although the Antex-Moore County contract permitted the use of either safrotin or boric acid aerosols, Antex only used the former, which is approved for use in offices. In addition, Antex only used half the manufacturer's recommended concentration level._2. Testing and Renovation Work at the CSB
In early June 1994, after complaints were made concerning air quality in the CSB, Sam Fields, supervisor of the Environmental Health Section of the Moore County Health Department, and Mr. Lake performed a walk-through of the building. Based on this inspection, Mr. Fields recommended that the building's air handling system be changed in order to increase the amount of fresh air introduced into the CSB. Carol T. Thomas, Defendant Moore County's General Services Coordinator, recommended on 15 June 1994 that "corrective measures... be implemented as soon as possible." On 20 June 1994, Mr. Lake sent a memorandum to David McNeill, Jr., the County Manager, which explained the corrective measures as follows:
On 21 June 1994, William J. Pate, an industrial hygiene consultant, conducted an air quality inspection in the CSB. At the time of his initial examination, Mr. Pate noted the presence of stained ceiling tiles, "indicating that there have been condensate or roof leaks," stained carpeting, and a floor drain covered withtape. Mr. Pate concluded that carbon dioxide levels in the CSB were 500 to 550 parts per million and noted that such levels should not exceed 1, 000 parts per million. In addition, Mr. Pate detected carbon monoxide levels of 10 to 11 parts per million in the garage area; these readings slightly exceeded the EPA maximum level of 9 parts per million. However, Mr. Pate did not detect the presence of carbon monoxide outside the garage area. Mr. Pate did not detect elevated levels of air pollutants or identify any explanation for the symptoms reported by certain CSB-based employees. After completing his initial inspection, Mr. Pate recommended that Defendant take the following measures to improve the indoor air quality in the CSB:
On 19 and 20 July 1994, the septic tanks associated with the CSB were drained and abandoned.1 On 2 0 July 1994, Mr. Pate performedadditional testing for the purpose of determining whether there were residual pesticide concentrations in the building's air and obtained results indicating that safrotin, dursban, chlordane, heptachlor and diazinon were not present and that volatile organic compounds were detected at levels lower than those deemed acceptable by the Occupational Safety and Health Administration and the American Conference of Governmental Industrial Hygienists.
More extensive testing of both soil and indoor air samples was performed by Acurex Environmental Corporation on 29 August 1994. Soil gas samples were collected at nine locations within the building, including six sites suspected of being above abandoned septic system lines. Two samples were collected from the soil beneath the concrete slab on which the CSB had been constructed at locations that were also believed to be above portions of the septic system. The soil gas samples targeted 72 volatile organic compounds for quantification; however, Acurex did not detect the presence of any of these compounds. Although carbon disulfide was detected in all samples, it was believed to be a "background contaminant." The amount of acetone and m-and p-xylene detected during the testing was "consistent with expectations" in light of the CSB's location. A number of identifiable volatile organic compounds were found in the indoor air samples tested by Acurex. However, the levels of each of these compounds were within the range of typical indoor measurements and consistent with those some material present in those tanks."found in large buildings containing paint, carpeting, ceiling tiles, composite wood products, and various plastics.
On 2 August 1994, peppermint oil was poured into the sewer line clean out and the septic lines in order to determine if there were any leaks in the system. No odor of peppermint oil was detected inside the building, demonstrating that the septic system was removing air from the building. A similar test was performed on the three drain lines with the same result.
On 9 September 1994, Flint Worrell, a waste management specialist with the Hazardous Waste Section of the North Carolina Department of Environment and Natural Resources, obtained soil samples from the trenches associated with the abandoned leach lines. According to Mr. Worrell, waste remnants may leach into the soil after filtering through the sewer system, and any massive accumulation of chemicals would have been visible in the drain line. However, test results revealed no indication of toxic substances. On 25 March 1996, Mr. Worrell removed sludge from the bottom of two of the three septic tanks, leading to the discovery of small quantities of barium and arsenic. The level of barium present in the septic tanks was "well below hazardous waste levels," and the detected level of arsenic was the "lowest level that the lab could identify." An additional sample taken six feet from the...
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