Plummer v. Norandal, USA, No. COA09-382 (N.C. App. 3/2/2010), COA09-382.
| Decision Date | 02 March 2010 |
| Docket Number | No. COA09-382.,COA09-382. |
| Parties | BOBBY LEE PLUMMER Employee-Plaintiff, v. NORANDAL, USA, Employer-Defendant and CIGNA/ACE USA/ESIS, Carrier-Employer-Defendant. |
| Court | North Carolina Court of Appeals |
Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff-appellant.
Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Harmony Whalen Taylor and William A. Smith, for defendant-appellees.
Plaintiff Bobby Lee Plummer appeals from a 5 December 2008 Order and Award of the Industrial Commission by Commissioner Christopher Scott denying his request for worker's compensation benefits based upon his contention that he had contracted asbestosis as a result of exposure to that substance in the course and scope of his employment with Norandal, USA. After careful consideration of the record in light of the applicable law, we conclude that the Commission's decision should be affirmed.
The Norandal facility is located in Salisbury and was constructed in approximately 1965.2 Plaintiff worked for Norandal and its predecessors briefly in the fall of 1974, was rehired on 1 January 1976, and was still employed by Norandal at the time of the 1 May 2006 hearing held before Deputy Commissioner Stephen T. Gheen.
At the Salisbury facility, raw and scrap aluminum is converted to foils of various thicknesses and grades. In the course of the manufacturing process, aluminum is melted and the molten aluminum is extruded through heat resistant "tips" to form sheets. After the sheets are formed, they are transported to a rolling mill, reduced to a thinner gauge material and then wound onto a core as either double or single sheets. The coils are then placed into annealing furnaces, where the aluminum is made stronger and more flexible and where oils and other residues from the production process are removed.
The "tips" used during the manufacturing process were made of machined Maranite, a substance that resembles sheet rock in appearance, but is much harder. The machining process used to make these "tips" involved drilling, sawing, and sanding Maranite sheets in order to produce the desired shape. During the 1960s and 1970s, the Maranite used in the Salisbury plant contained 25% to 50% asbestos. The Maranite manufacturer stopped making the asbestos-based product in 1978, so a ceramic-based product came into use at the Salisbury plant after the asbestos-based product ceased being available.
In addition, the annealing furnaces used in the Norandal facility contained asbestos insulation in the walls, ceilings, and floors. Although there was no exposed asbestos insulation at the time that the furnaces were installed, insulation had begun to fall from the furnace walls by 1985. Testing performed upon the insulation revealed that it contained 5% to 8% asbestos. The insulation in the annealing furnaces was removed on a furnace by furnace basis during the years from 1990 through 1998. Testing performed during the abatement of the first furnace revealed the presence of block insulation containing 15% to 30% asbestos and duct insulation containing 35% to 55% absestos.
During his career at the Norandal plant, Plaintiff worked as an etching operator, as a mill helper and mill operator, and as a metal handler. Prior to an expansion of the plant in 1979 and 1980, Plaintiff worked beside the Maranite shop and entered that area occasionally to cool off. In addition, despite the fact that his work station was not located near the annealing furnaces, Plaintiff would walk by them when going outside the building for a break. After the plant expansion, Plaintiff did not work in close proximity to the sources of asbestos dust in the facility. As a result of the design of the ventilation systems used in the plant, there were "multiple ways that dust containing asbestos fibers would spread within the plant." By the time that this matter was heard before the Deputy Commissioner in 2006, Plaintiff had smoked one to two packs of cigarettes per day for over thirty years.
On 2 May 2001, Plaintiff was examined by Dr. Dominic Graziano, a pulmonologist from West Virginia, who "read chest x-rays performed in January 2001 as showing irregular opacities in both lung bases with a 1/0 profusion." However, while "there were no pleural abnormalities," "[p]ulmonary function tests" showed "moderately severe obstructive and restrictive ventilatory impairment with increased lung volumes due to hyperinflation and moderate diffusion impairment." According to Dr. Graziano, Plaintiff suffered from asbestosis and chronic obstructive pulmonary disease.
Dr. Phillip Goodman, a radiologist at Duke Medical Center, reviewed Plaintiff's January 2001 x-rays.3 According to Dr. Goodman, Plaintiff's lateral film showed "increased lung volumes consistent with emphysema" and his PA film "demonstrated normal lungs and pleural space." Dr. Goodman did not believe that Plaintiff exhibited any evidence of asbestosis or asbestos-related pleural disease.
Similarly, additional x-rays taken of Plaintiff in August 2003 were read by a Dr. Dula. Dr. Dula observed "hyperexpansion of the lungs," which he believed to be "consistent with chronic obstructive pulmonary disease," but "found no interstitial changes or pleural plaques." A Dr. Erston "reviewed chest x-rays in February 2004 and also found no evidence of asbestosis."
Dr. Kremers, a pulmonologist practicing in Charlotte, examined Plaintiff on 18 September 2004 at the request of Defendants. According to Dr. Kremers, Plaintiff's "breath sounds were moderately diminished." Although a review of Plaintiff's x-rays revealed the presence of changes associated with emphysema, "there was no evidence of pulmonary fibrosis or pleural changes." Testing of Plaintiff's pulmonary functioning "revealed a severe obstructive defect and results consistent with tobacco-induced chronic obstructive lung disease with mild reversibility after bronchodilator medication." In Dr. Kremers' opinion, Plaintiff showed no signs of asbestosis.
On 4 April 2002, Plaintiff filed a Form 18B seeking worker's compensation for asbestosis. On 17 April 2003, Plaintiff requested that his claim be assigned for hearing. On 24 April 2003, Norandal and ACE USA/Cigna filed a Response to Request that Claim be Assigned for Hearing in which they denied compensability. On 25 December 2003, Plaintiff, Norandal, and CIGNA/ACE entered into a stipulation which recited, among other things, that Defendants "deny that [Plaintiff] was exposed to the hazards of asbestos during his employment with Norandal" and that, in the event that Plaintiff "was injuriously exposed to the hazards of asbestos during his employment with Norandal," then "CIGNA/ACE and Norandal shall be responsible for any benefits awarded to [Plaintiff] for any occupational disease or other compensable condition under the Worker's Compensation Act."4 On 23 February 2004, Norandal and ACE USA/ESIS filed a Form 61 denying liability.
Plaintiff's claim was consolidated for hearing with similar claims advanced against Norandal by five other claimants.5 Defendants denied compensability in all six claims. Plaintiff's claim came on for hearing before Deputy Commissioner George T. Glenn, II, on 1 March 2004. Prior to the hearing, Deputy Commissioner Glenn ruled that, since Defendants "had not filed a Form 61 within 90 days of the initiation of the [Plaintiff's] claim," they were barred "from disputing the compensability of" Plaintiff's claim. On 8 March 2005, Deputy Commissioner Glenn entered an Opinion and Award in which he found that neither Norandal nor its carrier had filed a Form 61 denying compensability and setting out a detailed justification for denying compensability in a timely manner. In addition, Deputy Commissioner Glenn found that Norandal and its carrier had failed to properly respond to discovery. As a result, Deputy Commissioner Glenn awarded Plaintiff compensation for injury to each of his lungs, increased the award by 10% based on a finding that Plaintiff's injury "was caused by the willful failure of the employer to comply with statutory requirements," and ordered the payment of attorneys fees to Plaintiff's counsel on the grounds that the "defense of this matter was not based upon reasonable grounds but was based upon stubborn litigiousness for which [P]laintiff should recover attorney's fees as part of the costs of this action." Defendants appealed to the Commission from Deputy Commissioner Glenn's order.
On 12 September 2005, after hearing the arguments of counsel and studying the parties' briefs, the Commission, in an Order by Commissioner Christopher Scott, concluded that "[t]he appealing party ha[d] shown good ground to reconsider the evidence in this matter;" reversed "the verbal Order by Deputy Commissioner Glenn made on or about February 25, 2004;" vacated "the March 8, 2005, Opinion and Award of Deputy Commissioner Glenn; and" remanded "the matter to a deputy commissioner for a full evidentiary hearing on all the issues in this matter." Although Plaintiff noted an appeal to this Court from the Commission's order, we dismissed Plaintiff's appeal on the basis that it had been taken from an unappealable interlocutory order on 10 January 2006.
A consolidated hearing involving this and four other cases6 took place before Chief Deputy Commissioner Stephen T. Gheen beginning 1 May 2006. In an Order and Award filed 3 March 2008, Chief Deputy Commissioner Gheen denied Plaintiff's claim for workers' compensation benefits. Plaintiff appealed Chief Deputy Commissioner Gheen's decision to the Commission. By means of an Opinion and Award by Commissioner ...
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