The Odd and Odious Occupational Disease: A Three-Part Series - Part II: Wait, When was Our Coverage Period?—The Long Game

By: Jeffrey A. Misenheimer and Melissa P. Woodard

Welcome to Part II of our three-part series on occupational diseases in North Carolina.  In this post, we will discuss the issues surrounding long-term exposure occupational diseases.  As noted in our prior post, Part I: Enumerated versus Unenumerated Conditions , there are two categories of occupational diseases: enumerated and unenumerated.  Some long-term exposure cases are specifically enumerated like asbestosis and silicosis, while others, like cancer, are not specifically enumerated.

A large number of these claims involve an employee who is or is very close to retiring.  The alleged workplace exposure that purportedly causes the conditions that arise under these claims can take many years to develop.  Often, the employee has worked in a field in which he or she is exposed to the same kind of hazardous material for the majority of his or her career.  When that is the case, which defendants are responsible for the alleged occupational disease?

In our state, the employer and carrier with the “last injurious exposure” are ultimately responsible for the entire claim.  Under N.C. Gen. Stat. § 97-57, the employer in whose employment the employee was “last injuriously exposed to the hazards of the disease” and the insurance carrier on the risk at the time of the last injurious exposure are liable.  The statutory term “last injuriously exposed” means “an exposure which proximately augmented the disease to any extent, however slight.”  Rutledge v. Tultex Corp./King’s Yarn, 308 N.C. 85, 89, 301 S.E.2d 359, 362–63 (1983).  This issue comes down to expert testimony and the factual evidence in the claim, but essentially, if the plaintiff can definitively show he or she was exposed to the hazardous substance that allegedly caused the condition with an employer and the carrier is the last in time, that employer and carrier are liable.

Another issue to contend with in long-term cases is the average weekly wage.  In claims for diseases that take many years to develop, determining the average weekly wage can feel like a mystery.  In the past few years, the North Carolina courts have shed some light on the average weekly wage issue.  Formerly, we used the last full year of full-time wages listed on the Social Security Earnings Report to calculate the average weekly wage.  As we know, many people retire and go on to earn significantly lower or part-time wages thereafter.  In Penegar v. UPS, the court reiterated the statutory definition of average weekly wage, stating the statute “explicitly provides that the weekly calculation using the fifth method should ‘most nearly approximate the amount which the injured employee would be earning were it not for the injury[,]’ not what the injured employee could be earning.”  259 N.C. App. 308, 325, 815 S.E.2d 391, 402 (2018).

There remains some argument regarding whether Penegar applies to employees that are fully retired and earning no wages for the 52 weeks prior to the diagnosis of the occupational disease.  In Penegar, the plaintiff earned post-retirement part-time wages, which is what the court utilized to calculate his average weekly wage.  Plaintiff’s attorneys and defense attorneys have widely varying opinions on how the Commission and the Courts would interpret Penegar in these cases.  One side argues it is not applicable at all, while the other side argues a plaintiff earning no wages is only entitled to the minimum compensation rate of $30.00 per week.  This can significantly impact the respective parties’ value of the claim, making settlement negotiations difficult.

The final issue we will address is the importance of the date the claim was filed.  Long-term exposure claims differ from injuries by accident because the plaintiff’s deadline for timely filing begins based on a different event.  In occupational exposure cases, the time period begins when the plaintiff is advised by competent medical authority that his condition is related to workplace exposure.  N.C. Gen. Stat. § 97-58 (2021).  The plaintiff has two years from that date to file the claim.  Id.  As you might expect, details in medical records can be vital to determining this date.

Long-term exposure occupational diseases like asbestosis, silicosis, and cancer bring a variety of nuanced issues.  As always, we recommend consulting Lewis & Roberts before accepting an occupational disease claim and contacting us for advice regarding the specifics in your next long-term exposure claim.  In the final post in this series, we will discuss issues in overuse or exposure cases with shorter exposure periods.