x46063.doc

I.C. NO. X46063, LARRY A. ROBERTSON, Employee, Plaintiff v. GUY M. BEATY & COMPANY, Employer, BERKLEY INSURANCE OF THE CAROLINAS, Carrier, Defendants.  OPINION AND AWARD by J. BRAD DONOVAN, Deputy Commissioner, N.C. Industrial Commission.  Filed 3 January 2013.



This matter was heard on 7 June 2012, in Charlotte, North Carolina.  Following the hearing, the deposition of Dr. William L. Gluck was received into evidence.  Upon receipt of the parties' written contentions, the record in this matter was duly ordered closed on 25 September 2012.
A P P E A R A N C E S
	Plaintiff:	Wallace & Graham, Attorneys, Salisbury, North Carolina; Michael B. Pross, appearing.

	Defendants:	Young, Moore & Henderson, Attorneys, Raleigh, North Carolina; Julia E. Dixon, appearing.

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The undersigned finds as fact and concludes as matters of law the following, which were entered into by the parties in their Pre-Trial Agreement and at the hearing as:
STIPULATIONS
1.	Plaintiff was employed by defendant-employer Guy M. Beaty & Company, Inc. in Travelers Rest, South Carolina from 2000 through 2001 and 2006.
2.	Defendant-employer Guy M. Beaty & Company, Inc. was insured by Berkley Insurance of the Carolinas from 1 October 1999 to 1 October 2002.
3.	The parties are subject to the North Carolina Workers' Compensation Act, defendant-employer employing the requisite number of employees to be bound under the provisions of said Act.
4.	Plaintiff Larry A. Robertson was diagnosed with mesothelioma in the pleura of his left lung.  Plaintiff's mesothelioma qualifies as an occupational disease pursuant to N.C. Gen. Stat. §97-53(13) because his work for defendant-employer was a significant contributing factor to the development of his disease and placed him at increased risk as compared to a member of the general public to contract the disease.
5.	Plaintiff's mesothelioma was caused by exposure to asbestos and he was last injuriously exposed to the hazards of asbestos while employed by defendant-employer in 2001 and assigned to work at the Celanese facility in Salisbury.  If this claim is determined to be compensable pursuant to a final award, defendant-employer and defendant-carrier will be the defendants on the risk for this occupational disease claim.
6.	Plaintiff's average weekly wage was $572.93, yielding a compensation rate of $381.95 per week.
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ISSUES
1.	Whether plaintiff is disabled pursuant to the Act due to his occupational disease, and if so, when did the disability occur and to what benefits is plaintiff entitled?
2.	If plaintiff is not disabled due to his occupational disease, whether he is entitled to benefits pursuant to N.C. Gen. Stat. §97-31(24) for permanent injury to an important internal organ, and if so, to which organ(s)?
3.	If plaintiff is entitled to benefits pursuant to N.C. Gen. Stat. §§97-29, 97-30 or 97-31(24), to what additional benefits, if any, is he entitled?
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EXHIBITS
1.	The parties stipulated the following documentary evidence:
a.	Stipulated Exhibit #1:  I.C. Forms, motions, Orders, Social Security earnings statement, discovery, medical records
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Based upon all of the competent evidence adduced from the record and the reasonable inferences therefrom, the undersigned makes the following:
FINDINGS OF FACT
1.	At the time of the hearing, plaintiff was 73 years old.  He has completed the 9th grade education and has worked in the construction industry for approximately 43 years, primarily involved with insulation type work.
2.	Plaintiff experienced breathing problems for the first time in November 2010.  On 19 January 2011, plaintiff was evaluated by thoracic surgeon, Dr. William D. Bolton.  Plaintiff presented with shortness of breath and asthma with a productive cough with no hemoptysis. Based on plaintiff's recurrent and persistent left pleural effusion and his history of smoking and asbestos exposure, Dr. Bolton recommended surgery with biopsy and possible pleurodesis versus decortication.
3.	On 1 February 2011, Dr. Bolton performed surgery which resulted in the diagnosis of pleural mesothelioma of the left lung.  Plaintiff was discharged from the hospital on 5 February 2011.
4.	On 23 February 2011, plaintiff began treating with medical oncologist Dr. W. Larry Gluck providing management of left-sided mesothelioma.  With mesothelioma, fluid is caused by the tumor's disruption of the vasculature of the chest.  The fluids in the blood vessels leak out and gather in the pleural spaces between the lung and rib cage, gradually interfering with the ability to breathe.  On 3 March 2011, plaintiff underwent a medical procedure known as a "talc pleurodesis."  Dr. Gluck described the procedure as one where talc is applied to the space between the rib and lung.  The talc fills the space and tries to force the fluid out.
5.	Dr. Gluck opined that plaintiff benefitted from the talc pleurodesis procedure as he was largely free of those symptoms that he had before the surgery.  Plaintiff remained relatively asymptomatic during the next 12 months of follow-up examinations by Dr. Gluck.  Dr. Gluck further opined that plaintiff is not a surgical candidate due to his overall condition and, although plaintiff has been asymptomatic, the disease is incurable and ultimately fatal.
6.	Dr. Gluck last saw plaintiff in May, 2012.  Plaintiff had developed a cough, as well as a decrease in his physical ability, increase in infiltrates in his lungs and weight loss, which were attributed to the mesothelioma.  Dr. Gluck opined that it is unlikely that plaintiff is "capable of any type of gainful employment" due at least in part to his mesothelioma.  Despite the "slower disease progression" than experienced by the average person, Dr. Gluck opined, based upon his experience, education and treatment of plaintiff, the mesothelioma has caused some disability in plaintiff beginning on the date of diagnosis, 1 February 2011.  Further, while acknowledging the variation of the tempo of the disease in different patients, Dr. Gluck opined that he "generally would be considering survivals of anywhere from eight months to two years."
7.	Plaintiff was not able to undergo surgery on his left lung; therefore, he did not lose his left lung.  Dr. Gluck was not asked to assign a permanent impairment rating to plaintiff's left lung, nor did he testify regarding any percentage of pulmonary impairment plaintiff has currently sustained as a result of the occupational disease.
8.	The undersigned finds as fact based upon the preponderance of evidence in view of the entire record, that plaintiff has been disabled from work since 1 February 2011 and continuing, due to the occupational disease he contracted as a result of his employment with defendant-employer.
9.	Plaintiff's average weekly wage was $572.93, yielding a compensation rate of $381.95 per week.
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	Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1.	Plaintiff has contracted mesothelioma, a disease which is not an ordinary disease of life to which members of the general public not so employed are equally exposed; therefore, it constitutes an occupational disease under the Act.  N.C. Gen. Stat. §97-53(13).  It has been stipulated that plaintiff's condition is the result of his employment with defendant-employer.  As a result of his condition, the expert medical testimony indicates that plaintiff is disabled from employment and has been so since the date of his diagnosis of 1 February 2011.
2.	Based upon the preponderance of evidence in view of the entire record, the undersigned concludes as a matter of law that as a result of the compensable injury, plaintiff is entitled to temporary total disability compensation at the rate of $381.95 per week for the period from 1 February 2011 and continuing.  N.C. Gen. Stat. §97-29.
3.	There is insufficient evidence in the record upon which to determine a value based upon the loss or permanent injury to any important internal organ pursuant to N.C. Gen. Stat. §97-31(24).  Accordingly, the undersigned denies plaintiff's claim for benefits pursuant to this statute.
4.	Based upon the preponderance of evidence in view of the entire record, the undersigned concludes as a matter of law that plaintiff is entitled to have defendant pay for medical expenses incurred or to be incurred as a result of the compensable injury as may be required to provide relief, effect a cure or lessen the period of disability, subject to the statute of limitations prescribed in N.C. Gen. Stat. §97-25.1.  N.C. Gen. Stat. §97-2(19).
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	Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned enters the following:
A W A R D
1.	Subject to a reasonable attorney's fee herein approved, defendants shall pay temporary total disability compensation to plaintiff at the rate of $381.95 per week for the period beginning 1 February 2011 and continuing.  As much of said compensation as has accrued shall be paid in a lump sum.
2.	A reasonable attorney's fee of 25% of the lump sum compensation awarded to plaintiff in Paragraph 1 above is hereby approved to be deducted from that sum due plaintiff and paid directly to counsel.  Thereafter, every fourth payment shall be paid directly to plaintiff's counsel.
3.	Defendants shall pay medical expenses incurred or to be incurred when medical bills have been submitted according to established Industrial Commission procedures.
4.	Defendants shall pay the costs.
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IT IS FURTHER ORDERED that this case be REMOVED from the Charlotte docket.
This the 3rd day of January, 2013.



			S/			
J. BRAD DONOVAN
DEPUTY COMMISSIONER

JBD:sm

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