North Carolina Court of Appeals Affirms Industrial Commission’s Denial of Bellwether Cases

The North Carolina Court of Appeals recently affirmed the Industrial Commission’s denial of claims, collectively known as the bellwether cases, that constituted a small portion of 144 consolidated workers’ compensation claims.

Specifically, Walter Hinson, decedent-employee, worked for Continental Tire the Americas at its factory in Charlotte, North Carolina. The decedent’s estate alleged that his employment exposed him to levels of harmful airborne asbestos sufficient to cause asbestos-related disease. In addition to the decedent’s estate, approximately 143 other employees and/or estates similarly alleged occupational exposure to asbestos while working with the company. In an effort to consolidate the claims, the plaintiffs’ counsel selected a group of six representative claims, known as the bellwether cases, to be tried and consolidated in the matter. The commission determined that the evidence presented regarding the asbestos exposure to the employees, criteria for diagnosis asbestos, medical evidence regarding exposure, and a causal connection between asbestos and employment would be applicable to all 144 claims. Determination of the bellwether cases, therefore, impacted not only the claims of the five representative claimants, but also the claims of the remaining consolidated claimants.

Generally, when the commission determines whether an occupational disease is compensable, it first must determine if a claimant has met his/her burden of proving an occupational disease. At the time, the commission will then determine the issue of compensability. However, due to the volume of the consolidated claims, the Court of Appeals was tasked with reviewing the commission’s determination on compensability before it made any decision as to whether the consolidated claimants actually had asbestos-related diseases.

During the initial consolidated hearings, which took place over the course of 38 hearing days between February 14, 2011 and February 18, 2013, the parties were also allowed to have a full trial on the science, which is unlike that of most workers’ compensation claims. During this time, evidence was presented regarding the factory, asbestos exposure to employees, the criteria for the diagnosis of asbestos, the scientific evidence regarding asbestos exposure, and the potential for disease causation.

Among the most relevant of the commission’s findings was that pathological diagnosis of asbestosis was the most reliable method of diagnosis. Although the plaintiff relied on x-rays to support a diagnosis of asbestosis, the commission noted that zero of the five deceased had pathological evidence of asbestos bodies in their lungs. Additionally, the air monitoring over the factory throughout the years that the claimants were employed showed asbestos levels well below the then-existing asbestos regulations. As such, the commission ultimately concluded that employment in the factory did not expose the claimants to airborne asbestos of a kind and amount sufficient to cause or contribute to asbestosis.

On appeal, the court reiterated the claimant’s burden of proving every element of a workers’ compensation claim and found that the claimants failed to do so in this case. The Court of Appeals held that the full commission correctly concluded that the claimants failed to establish a causal link between their alleged asbestosis and employment at the factory. As such, this decision resulted in the denial of all 144 claims.

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