Miller v. Ppg Industries
I.C. NO. 897485.
| N.C. Indus. Comm. | Mar 14, 2011Background
- Plaintiff worked for Defendant in Lexington, NC from Feb 10, 1969 to July 10, 2002 (last day 2002 per stipulation).
- Defendant is self-insured with Key Risk Management Services as administrator; WC Act applies.
- Plaintiff had asbestos exposure for at least 30 days in a seven-month period while employed there.
- Plaintiff duties as an electrician included heavy lifting, climbing, and walking across a large facility; PPE used when required.
- Plaintiff’s treaters began diagnosing interstitial/restrictive lung disease in 1999; asbestosis diagnosis first documented Jan 25, 2008 by Dr. Ohar.
- Form 18B filed Apr 23, 2008 asserting occupational disease; Dr. Patel treated and Dr. Ohar diagnosed asbestosis; Dr. Crim supported pneumoconiosis findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff contracted asbestosis from employment | Plaintiff argues work exposure caused asbestosis; treating doctors support. | Defendant contends evidence disputed; causation not established. | Plaintiff contracted asbestosis; medical opinion weights favor treating physicians. |
| What is plaintiff's average weekly wage | Wage reflects earnings used for benefits. | Wage may be disputed; stipulations control. | Average weekly wage set at $897.65; compensation rate $601.43. |
| Whether the claim is time-barred by the statute of limitations | Late diagnosis allowed under governing statute; strict timing less critical. | Standard limitations period could bar claim absent timely notice. | Claim not barred; diagnosis 2008 and notice timely under applicable statute. |
| Whether attorney's fees are warranted under N.C. Gen. Stat. § 97-88.1 | Fees appropriate given success on compensability. | Defendant contested fee amount reasonableness. | Attorney's fee awarded at 25% of accrued compensation. |
Key Cases Cited
- Terrell v. Terminix Services, Incorporated, 142 N.C. App. 305, 542 S.E.2d 332 (2001) (statutory timing framework for occupational disease claims)
- Russell v. Lowes Prods. Distrib., 108 N.C. App. 762, 425 S.E.2d 454 (1993) (temporary total disability standards)