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Patton v. Sears Roebuck & Co.

Court of Appeals of North Carolina

February 17, 2015

MICHAEL RAY PATTON, Administrator of the Estate of THURMAN FRANKLIN PATTON, Deceased Employee, Plaintiff,
v.
SEARS ROEBUCK & CO., Employer, SPECIALTY RISK SERVICES, Carrier, Defendants

Heard in the Court of Appeals January 21, 2015

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

Rudisill White & Kaplan, P.L.L.C., by Stephen Kushner, for defendants.

ELMORE, Judge. Judges DAVIS and TYSON concur.

OPINION

Page 352

Appeal by defendants from Opinion and Award entered 27 June 2014 by the North Carolina Industrial Commission, I.C. No. 340739.

ELMORE, Judge.

Sears Roebuck & Co. (" defendant-employer" ) and Specialty Risk Services (collectively " defendants" ) appeal from the North Carolina

Page 353

Industrial Commission's (" the Commission" or " the Full Commission" ) Opinion and Award. After careful review, we affirm.

I. Facts

Thurman Franklin Patton (the decedent) originally brought a claim for asbestosis against defendants in 2003. The decedent's claim was resolved through a compromise settlement agreement approved by the Commission on 27 April 2009. On 10 February 2010, the decedent passed away. The decedent's surviving spouse, Artie Patton, passed away on 29 August 2011. As such, the named plaintiff in this action is Michael Ray Patton, the decedent's son and the administrator of his estate.

On 27 June 2014, the Full Commission entered an Opinion and Award reversing the Deputy Commissioner's decision and concluding that the decedent's death was compensable under the North Carolina Workers' Compensation Act. The Commission awarded plaintiff, in relevant part, 400 weeks of compensation benefits at the weekly rate of $400.01 and ordered defendants to pay plaintiff a burial fee of $3,500.00.

The evidence before the Commission tended to show that the decedent worked for defendant-employer from 1958-1995 as a service technician. The decedent developed an expertise in the repair, installation, and maintenance of home heating, ventilation, and air conditioning (HVAC) units.

Johnny Carroll, the decedent's co-worker, testified on behalf of plaintiff before the Commission. Defendant-employer employed Mr. Carroll as a service technician for approximately twenty-four years beginning in 1972. Mr. Carroll testified that he was the decedent's primary working partner from 1978-1995. The pair worked together approximately two days per week. On the other days, they worked on separate, but similar service calls. On average, each would respond to six to ten service calls per day.

Mr. Carroll testified that he and the decedent repaired furnaces between October and March on almost a daily basis. Prior to 1978, most of the decedent's work also involved furnace installations. Mr. Carroll stated that the furnaces contained asbestos materials, including asbestos rope gaskets, asbestos tape, and asbestos cement.

Jerry Dean Davis, a retired employee of defendant-employer, testified that he worked as a service technician for thirty-eight years beginning in August 1971. Mr. Davis testified that he likely went on service calls with the decedent. Mr. Davis recalled that the only time an employee would work on a furnace call would be " in the wintertime." He also testified that he reasonably believed the decedent would have been exposed to asbestos for thirty days in a seven-month period while working for defendant-employer. However, he clarified that he assumed the decedent ...


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