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Lipe v. Starr Davis Co., Inc.

Court of Appeals of North Carolina

November 4, 2014

SHIRLEY LIPE, Widow and Executrix of the Estate of ROSS IDDINGS LIPE, Deceased Employee, Plaintiff
v.
STARR DAVIS COMPANY, INC., Employer, TRAVELERS CASUALTY & SURETY (as Successor to AETNA CASUALTY & SURETY COMPANY), Carrier, Defendants

Heard in the Court of Appeals May 5, 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

AFFIRMED.

Wallace and Graham, P.A., by Michael B. Pross, for Plaintiff.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Hatcher Kincheloe, Sarah P. Cronin, and M. Duane Jones, for Defendant Travelers Casualty & Surety.

DILLON, Judge. Chief Judge McGEE and Judge STEELMAN concur.

OPINION

DILLON, Judge.

This opinion supersedes the opinion Lipe v. Starr Davis Company, No.COA14-90, 763 S.E.2d 18, (2014) (unpublished) filed on 1 July 2014. This appeal by Defendant is from an opinion and award entered 30 September 2013 by the North Carolina Industrial Commission and was originally heard in the Court of Appeals on 5 May 2014. This appeal was reheard in the Court on 20 October 2014, pursuant to the Order entered 27 August 2014 allowing Defendant's Petition for Rehearing.

Travelers Casualty & Surety (" Defendant" ) appeals from an opinion and award of the Full Commission of the North Carolina Industrial Commission (" Full Commission" or " Commission" ) ordering that Defendant pay death benefits to Shirley Lipe (" Plaintiff" ), widow of Ross Iddings Lipe (" Decedent" ). For the following reasons, we affirm.

I. Factual & Procedural Background

Decedent was employed by Starr Davis Company, Inc. (" SDC" )[1] in 10 March 1975. During his employment, he was exposed to asbestos. Decedent retired on 1 July 1991, at a time when his average weekly wage was $606.36, when he became disabled due to multiple sclerosis, unrelated to his exposure to asbestos, and was no longer able to work.

In January 1994, Decedent was diagnosed with asbestosis. Decedent filed an occupational disease claim with the Commission. By opinion and award entered 24 August 1999, the Commission found that Decedent's asbestosis was caused by his exposure to asbestos during his period of employment with SDC. The Commission awarded Decedent benefits of $404.24 per week, which was based on 66 2/3% of what his average weekly wages were when he retired in 1991, rather than based on his average weekly wages at the time he was diagnosed with asbestosis in 1994 -- which would have been zero, as Decedent had been out of work since July 1991. This Court affirmed the Full Commission's 24 August 1999 opinion and award in Lipe v. Starr Davis Co., 142 N.C.App. 213, 543 S.E.2d 533 (unpublished), disc. review denied, 354 N.C. 363, 556 S.E.2d 303 (2001).

In February 2010, Decedent was diagnosed with lung cancer. He died less than two months later, as a result of his lung cancer, on 11 April 2010. Plaintiff thereafter filed a claim with the Commission seeking death benefits based on Decedent's development of lung cancer through his asbestos exposure while working at SDC. Defendant conceded the compensability of Plaintiff's claim, but agreed to payments of only $30.00 per week, the statutory ...


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