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File v. Norandal USA, Inc.

Court of Appeals of North Carolina

February 18, 2014

Douglas Scott FILE, Employee-Plaintiff,
v.
NORANDAL USA, INC., Employer, Ace USA, Carrier, Defendants.

Heard in the Court of Appeals 7 January 2014.

Page 203

[Copyrighted Material Omitted]

Page 204

Appeal by Douglas Scott File from Opinion and Award entered 10 May 2013 by the North Carolina Industrial Commission.

Wallace and Graham, P.A., by Edward L. Pauley, for plaintiff.

Hedrick, Gardner, Kincheloe, & Garofalo, L.L.P., by Paul C. Lawrence, Zachary V. Renegar, and M. Duane Jones, for defendants.

ELMORE, Judge.

Douglas Scott File (plaintiff) appeals from the North Carolina Industrial Commission's denial of his claim for workers' compensation benefits pursuant to N.C. Gen.Stat. § 97-53. After careful review, we affirm the Opinion and Award of the Industrial Commission.

I. Background

On 28 April 2005, plaintiff filed a Form 18 " Notice of Accident to Employer and Claim of Employee" alleging that his close proximity to high energy machinery at his workplace exposed him to radiation that contributed to the development of brain cancer. Plaintiff's employer, Norandal USA, Inc. (defendant), denied plaintiff's claim. Thereafter, the claim was assigned for hearing before the Industrial Commission, and Deputy Commissioner J. Brad Donovan denied plaintiff's claim for workers' compensation benefits. Plaintiff subsequently appealed to the Full Commission (the Commission). In an Opinion and Award filed 10 May 2013, the Commission ruled that plaintiff failed to " prove that he suffer[ed] from an occupational disease compensable within the meaning of N.C. Gen.Stat. § 97-53(13)" and denied his claim. Plaintiff now appeals to this Court from the Commission's 10 May 2013 Opinion and Award.

II. Facts

Defendant is a company that owns an aluminum plant (the plant) in Salisbury and manufactures aluminum foil. Plaintiff worked for defendant in the plant from 1984 until 2007. Between the years of 1984 and

Page 205

1994, plaintiff was employed as a mill operator. The mill is a machine that transforms a thick sheet of aluminum to a thin sheet of aluminum foil. The plant has five mills in operation, and each utilizes a " Measurex" device (collectively " the devices" ), which sends x-ray beams through an aluminum sheet to measure its thickness. Once the thickness is determined, the device sends the data to a computer that modifies the mill rolls to make sure the aluminum thickness is appropriate.

Plaintiff worked in the maintenance department from 1994 until his retirement in 2007. Plaintiff was diagnosed with brain cancer in 2000, had surgery to remove a benign tumor, and returned to work after six months. The brain cancer returned in 2004, and once again plaintiff missed time from work to treat his condition. Plaintiff returned to work, only to be diagnosed with brain cancer again and develop a malignant tumor in 2007. Due to complications from the third surgery, plaintiff was unable to perform his occupational responsibilities and he retired on disability.

During plaintiff's employment, his work duties included preventative maintenance and repairs on the mills, which exposed him to the devices on a daily basis. Plaintiff testified that he worked within three to five feet of the devices while they were running. This was corroborated by Terry Walker, a colleague of plaintiff's, who performed the same job responsibilities. Plaintiff called Dr. Max Costa and Dr. David Schwartz as expert witnesses. They both opined that plaintiff's employment increased his risk of developing brain cancer due to radiation exposure from the devices.

The devices were manufactured by Honeywell Corporation, and Robert Kesslick was Honeywell's on-site technician during plaintiff's employment. Kesslick maintained the devices' control system and made repairs on the devices. Defendant called Kesslick as a witness, and he testified that the closest an individual could get to Mills # 2 and # 3 was five feet and ten feet on Mills # 1 and # 4. He further stated that throughout his years testing the devices, he " never received a dosage of any recordable level of radiation." Defendant tendered Dr. Robert Dixon as an expert in x-ray physics with subspecialties in radiation shielding and radiation dosimetry. He concluded that any radiation exposure to employees from the devices would be " virtually non-existent[.]"

At the hearing, plaintiff introduced the on-site device safety manual provided by Honeywell to defendant, an " Ionizing Radiation Fact Book[,]" and the " BEIR Study" to contradict defendant's witnesses about the ...


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