Latest workers’ compensation opinion from NC Court of Appeals

On September 21, 2010, the North Carolina Court of Appeals released its latest batch of opinions, which included one published case on workers’ compensation.  In Pope v. Johns Manville, the Court issued a second opinion in this case after granting defendants’ petition for rehearing. The Court’s first opinion in this case, issued earlier this year, affirmed the Industrial Commission’s decision that the plaintiff had developed asbestosis from asbestos exposure during the 50′s and 60′s and that he was disabled due to his asbestosis. In this second opinion, the Court reconsidered the Commission’s decision on how much disability pay the plaintiff was due.

The Commission had calculated the plaintiff’s average weekly wage (AWW) based on his earnings in 2003, the last year he worked.  Plaintiff was not diagnosed with asbestosis until 2005, after he had retired. The Court held that because the plaintiff is considered “injured” on the date of his asbestosis diagnosis, his AWW must be calculated from that point. Of course, because someone retired has no weekly wages, an exceptional method of measuring lost wages is probably appropriate under the fifth prong of the AWW definition of N.C. Gen. Stat. 97-2(5). The Court remanded the case to the Commission to reconsider the AWW issue and make the appropriate findings to support a decision on the AWW question.