Lipe v. Starr Davis Co. et al. – NC Workers’ Compensation for Asbestos Disease

Workers who are exposed to asbestos while on the job in North Carolina should explore the possibility of workers’ compensation benefits – even when they don’t learn of the related disease until many years later, as is often the case.
Usually, workers’ compensation benefits are something awarded soon after the injury-causing incident. However, exposure to asbestos causes diseases that are latent, and often asymptomatic until years later.

It’s worthwhile to explore the possibility of a third-party lawsuit against the manufacturers of asbestos for such injuries, though it’s true those are time-consuming and the burden of proof much higher. In workers’ compensation cases, plaintiffs needn’t show the employer was negligent in exposing workers to the hazardous material, only that such exposure occurred in the course of employment and proximately caused the illness.

Our Charlotte workers’ compensation attorneys know workers and survivors who collect workers’ compensation benefits are not estopped from pursuing third-party litigation against asbestos manufacturers.

One such case was recently weighed before the North Carolina Court of Appeals. In Lipe v. Starr Davis Co. et al., the insurer of the now-defunct employer haggled over not only compensability of the worker’s death, but also on the amount, given that his diagnoses did not occur until several years after he had already retired for unrelated reasons.

According to court records, decedent worked for the company from 1975 until retiring in 1991. At the time, he brought in an average weekly wage of $606. He was forced to retire due to multiple sclerosis, which was unrelated to the asbestos exposure he’d endured in his nearly two decades on the job.

Three years after retirement, he was diagnosed with asbestosis. He filed a claim for occupational disease with the North Carolina Industrial Commission, which ultimately awarded him benefits of $404 weekly – based on the 66 2/3 percent of his average weekly wages at the time of his retirement. Had the commission based its percentage determination on his average weekly salary at the time of diagnosis, it would have been zero, because he wasn’t working then. The appellate court affirmed that ruling in 1999.

Then in February 2010, decedent was diagnosed with lung cancer, and died just two months later.

His widow then filed a claim seeking workers’ compensation death benefits. Defendant insurer conceded compensability, but would agree only to pay $30 weekly, the statutory minimum under the law, arguing the worker was not earning a salary at the time of his diagnosis.

The full commission disagreed, awarding plaintiff full benefits equal to 66 2/3 salary at the time decedent retired for 400 weeks. The commission indicated the question of how benefits should be calculated had already been decided back in 1999, and even if collateral estoppel didn’t apply, the court was within its discretion under the five permissible methods of calculating a worker’s average weekly wages to reach the conclusion it did.

Defendant appealed, and the appellate court affirmed. Specifically, it noted N.C. Gen. Stat. 97-2(5) provides that except when such determination would be unfair, the commission can compute average weekly wages based on what would most nearly be approximate to the amount the worker would have earned, if not for the injury. Defense argued decedent earned zero at the time of the diagnosis and would have been earning zero at the time he was diagnosed with lung cancer – even if he’d never contracted it in the first place.

The court indicated this case is unique from other case law cited by defense because it involves an injury that did not manifest until after retirement. He could not have filed the complaint at the time of exposure because he didn’t know it caused him injury until many years later, when he was no longer working. To grant his widow the minimum payment, the court ruled, would be inherently unfair.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
Lipe v. Starr Davis Co. et al., Nov. 4, 2014, North Carolina Court of Appeals

More Blog Entries:

Compensation for Injured Workers with Pre-Existing Conditions, Nov. 22, 2014, Charlotte Workers’ Compensation Lawyer Blog

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