K. Pope v. Manville

• Decision Date: 21 September 2010
• Docket Number: No. COA09-281-2.,COA09-281-2.
• Citation: 700 S.E.2d 22
• Parties: Horace K. POPE, Jr., Employee, Plaintiff, Appellee, v. Johns MANVILLE, Employer, St. Paul Travelers Indemnity Company, Carrier-Defendant, Defendants-Appellants.
• Court: North Carolina Court of Appeals

700 S.E.2d 22

Horace K. POPE, Jr., Employee, Plaintiff, Appellee,

v.Johns MANVILLE, Employer, St. Paul Travelers Indemnity Company, Carrier-Defendant, Defendants-Appellants.

No. COA09-281-2.

Court of Appeals of North Carolina.

Sept. 21, 2010.

Appeal by defendants from Opinion and Award entered 7 November 2008 by the North Carolina Industrial Commission. Heard in the Court of Appeals 16 September 2009, with petition for rehearing having been granted 10 March 2010.

Wallace and Graham, P.A., by Michael B. Pross, Salisbury, and R. James Lore, Cary, for Plaintiff-Appellee.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Deepa P. Tungare, and Jeffrey A. Kadis, Charlotte, for Defendant-Appellant.

Smith Moore Leatherwood LLP, by Jeri L. Whitfield, Greensboro, and Elizabeth Brooks Scherer, Raleigh, for North Carolina Association of Defense Attorneys, Amicus Curiae.

ERVIN, Judge.

Defendants Johns Manville and Travelers Indemnity Company appeal from an Opinion and Award entered by the North Carolina Industrial Commission on 7 November 2008, in which the Commission concluded that Plaintiff Horace Pope had been exposed to asbestos during his employment with Defendant Johns Manville; that Plaintiff had contracted asbestosis; that Plaintiff was disabled; and that Plaintiff should be awarded $399.06 per week in disability benefits, medical expenses, and attorneys' fees. On 19 January 2010, this Court filed an opinion in Pope v. Johns Manville, --- N.C.App. ----, 690 S.E.2d 558, 2010 WL 157508, 2010 N.C.App. LEXIS 75 (Jan. 19, 2010) (unpublished), in which we affirmed the Commission's Opinion and Award in its entirety.

On 23 February 2010, Defendants filed a petition for rehearing pursuant to N.C.R.App. P. 31. In their rehearing petition, Defendants contended that we erred in our original opinion by upholding the Commission's weekly benefit award because the Commission had erred in calculating Plaintiff's average weekly wages. More particularly, Defendants asserted that this Court erred by (1) upholding the Commission's calculation of Plaintiff's weekly wages “under N.C. Gen.Stat. § 97-61.5 and case law under that statute, as opposed to N.C. Gen.Stat. § 97-54 and 97-64,” and by (2) upholding “a sweeping award of benefits by using greater wages from a different subsequent employment to calculate Plaintiff's average weekly wage.” On 17 March 2010, we granted Defendants' petition for the purpose of reconsidering our decision to affirm the Commission's calculation of Plaintiff's average weekly wage. After careful consideration of Defendants' rehearing petition and the additional briefs which we requested in our order granting Defendants' rehearing petition, we now conclude that the Commission erred in its determination of Plaintiff's average weekly wage and remand this case to the Commission for further proceedings, including, if necessary, findings of fact and conclusions of law concerning whether, “for exceptional reasons,” the Commission is required to calculate Plaintiff's average weekly wage by employing “such other method of computing average weekly wages ... as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.” N.C. Gen.Stat. § 97-2(5) (2009). Except for our resolution of this issue, we adhere to the remainder of our previous opinion in this matter.

I. Factual and Procedural Background

The facts of this case are set out in our previous opinion, Pope v. Johns Manville, and we will not restate them in detail here. At the most basic level, the evidence received before the Commission tended to show that Plaintiff was 80 years old at the time of the Commission's decision. Plaintiff had worked from 1 January 1949 to 1 January 1950 and from 1 August 1952 to 31 August 1968 at a Johns Manville facility in Marshville, North Carolina. During his employment at Johns Manville, Plaintiff worked in all areas of the facility without wearing breathing protective equipment. In the course of his employment at the Johns Manville plant, Plaintiff was exposed to asbestos fibers. Plaintiff stopped working at Johns Manville in August 1968. After leaving Johns Manville, Plaintiff worked for various employers until 1986, when he began raising turkeys on a full-time basis. Plaintiff worked as a self-employed turkey farmer from 1986 until his retirement in 2003, at which point he was 75 years old. In 2005, Plaintiff was diagnosed with asbestosis.

On 24 May 2005, Plaintiff filed an Industrial Commission Form 18 for the purpose of seeking workers compensation medical and disability benefits stemming from asbestosis. Plaintiff's claim was heard before a Deputy Commissioner, who awarded Plaintiff disability and medical benefits. Defendants appealed the Deputy Commissioner's Opinion and Award to the Full Commission. On 7 November 2008, the Commission entered an Opinion and Award that affirmed the Deputy Commissioner's decision. Defendants noted an appeal from the Commission's order to this Court.

On appeal, Defendants advanced several challenges to the lawfulness of the Commission's decision. First, Defendants argued that the Commission erred by finding and concluding that Plaintiff had contracted asbestosis. After carefully examining the record, we determined that the evidence supported the Commission's conclusion that Plaintiff suffered from asbestosis. Next, Defendants asserted that the Commission erred by considering the testimony of Dr. Jill Ohar on the grounds that Plaintiff had failed either to identify her as an expert witness prior to the hearing or to include her among the expert witnesses listed in a pre-trial agreement. In response, we concluded that Defendants were not entitled to relief on appeal as a result of the inclusion of Dr. Ohar's testimony in the record given that Defendants had been afforded ample opportunity to address the issues raised by Dr. Ohar's testimony and given that any error that the Commission might have committed in considering Dr. Ohar's testimony had been rendered harmless by the Commission's finding that, “[e]ven if Dr. Ohar's testimony were not considered pursuant to defendants' objection, the greater weight of the competent evidence showed that plaintiff contracted asbestosis.” Thirdly, Defendants argued that the Commission erred by concluding that Plaintiff was disabled given that he had not been diagnosed with asbestosis when he stopped working in 2003. In rejecting Defendants' argument, we concluded that the Commission's findings were sufficient to support its conclusion that Plaintiff was permanently disabled and entitled to receive disability benefits.

In their final challenge to the Commission's decision, Defendants argued that the Commission erroneously calculated Plaintiff's average weekly wage. In its Opinion and Award, the Commission established the amount of weekly disability payment to which Plaintiff was entitled based on the amount he earned as a turkey grower during the year immediately prior to his retirement. In support of their challenge to the Commission's decision with respect to this issue, Defendants asserted that:

The Industrial Commission's determination that Plaintiff's average weekly wage should be based upon earnings from 2003 is ... flawed because in 2003 Plaintiff had not developed the disease. At the time of the alleged “diagnosis,” Plaintiff's wages were zero, and, therefore, his loss of earning power was zero.

In other words, Defendants contended that, because Plaintiff had not been diagnosed with asbestosis until after his retirement, he was not entitled to any disability compensation whatsoever. However, “Defendant[s] cite[d] no authority for the proposition that a claimant cannot recover for an occupational disease if he has voluntarily retired prior to filing a claim, and long-established precedent to the contrary clearly establishes that a claimant is not barred from receiving workers' compensation benefits for an occupational disease solely because he or she was retired.” Austin v. Cont'l Gen. Tire, 185 N.C.App. 488, 495, 648 S.E.2d 570, 575, disc. review denied, 361 N.C. 690, 652 S.E.2d 255 (2007) ( Austin II ). Alternatively, Defendants argued that:

... N.C. Gen.Stat. § 97-54 references the wages that an employee was earning at the time of [his] “last injurious exposure,” which ... would have to be the wages [Plaintiff] earned in 1967, his last full year of employment with [Defendant.]

As a result, Defendants argued that the Commission erred by awarding a weekly disability payment that was not based exclusively on Plaintiff's earnings during the last year that he worked at the Johns Manville facility. In our original opinion, we upheld the Commission's calculation of Plaintiff's average weekly wage in reliance on Abernathy v. Sandoz Chems./Clariant Corp., 151 N.C.App. 252, 565 S.E.2d 218, cert. denied and disc. review denied, 356 N.C. 432, 572 S.E.2d 421 (2002), and Moore v. Standard Mineral Co., 122 N.C.App. 375, 469 S.E.2d 594 (1996). In essence, we concluded in our original opinion that “ Moore holds that the average weekly wage of a plaintiff for the purpose of determining benefits under N.C. Gen.Stat. § 97-61.5 was the wage earned by the plaintiff as of the time of injury[,]” that “ Abernathy extends the ruling of Moore by stating that ‘it would be obviously unfair to calculate plaintiff's benefits based on his income upon the date of diagnosis because he was no longer employed and was not earning an income,’ ” so that “ ‘the only fair method for determining his average weekly wage is using his latest full year of employment,’ ” Pope, 2010 WL 157508 at *15, 2010 N.C.App. LEXIS at *41-42 (quoting Abernathy, 151 N.C.App. at 259, 565 S.E.2d at 222); and that the Commission appropriately “followed the approach approved in Abernathy and calculated a weekly compensation rate of $399.06 based on the wages that Plaintiff earned during his last full year of employment.” Id. at *15, 2010...