CARRA JANE PENEGAR, Widow and Executrix of the Estate of JOHNNY RAY PENEGAR, Deceased Employee, Plaintiff,
UNITED PARCEL SERVICE, Employer, LIBERTY MUTUAL INSURANCE CO., Carrier, Defendants.
in the Court of Appeals 18 October 2017.
by Plaintiff and Defendants from an Opinion and Award entered
8 December 2016 by the Full North Carolina Industrial
Commission Nos. 14-769356 & 15-742389.
Wallace and Graham, P.A., by Michael B. Pross, for
Goodman McGuffey, LLP, by Jennifer Jerzak Blackman, for
North Carolina Industrial Commission (the
"Commission") did not err in finding that an
employee's last injurious exposure to asbestos, which
contributed to his development of an occupational disease,
occurred during the thirty years he worked for his primary
lifetime employer, based on the testimony of his former
co-workers and medical experts, and in the absence of any
evidence that he was exposed to asbestos at any subsequent
job. Nor did the Commission err in calculating the
employee's average weekly wage based upon the
employee's earnings in the year immediately preceding his
case arises out of a workers' compensation claim filed by
Johnny Ray Penegar ("Decedent") against United
Parcel Service ("Employer" or "UPS") and
Liberty Mutual Insurance Company ("Carrier")
(collectively "Defendants"), asserting compensation
for Decedent's mesothelioma. Carra Jane Penegar
("Plaintiff"), Decedent's wife and executrix of
his estate, was substituted as Plaintiff following
Decedent's death on 26 March 2015 during the pendency of
this action. Both parties appeal from the opinion and award
of the Full North Carolina Industrial Commission, which
awarded Plaintiff compensation for all of Decedent's
medical expenses associated with his diagnosis of
mesothelioma, total disability compensation, burial expenses,
and death benefits.
argue that the Commission's findings that Plaintiff was
injuriously exposed to asbestos while employed by UPS and
that Plaintiff's last injurious exposure to asbestos
occurred at UPS are unsupported by competent evidence.
argues that the Commission lacked jurisdiction to revise the
Deputy Commissioner's calculation of the average weekly
wage, and, assuming jurisdiction, that the Commission's
calculation was incorrect. Additionally, Plaintiff asserts
that the Commission failed to address the issue, raised by
Plaintiff on appeal from the Deputy Commissioner's
opinion and award, of the appropriate maximum compensation
rate to be applied to Decedent's claim. After careful
review, we affirm the Commission's finding that
Decedent's last injurious exposure to asbestos occurred
while Decedent was employed with UPS. We also affirm the
Commission's recalculation of Decedent's average
weekly wage. We dismiss as moot Plaintiff's appeal from
the Commission's failure to address the Deputy
Commissioner's calculation of the maximum compensation
and Procedural History
worked for UPS for thirty years, from 1967 until 1998, as a
feeder driver based in UPS's Charlotte facility.
Decedent's duties included driving a tracker-trailer to
destinations within 200 miles and back each day. The
Charlotte facility was a large, open building approximately
the size of two or three football fields, in which the main
area, referred to by employees as the "shop, "
consisted of various unseparated bays designated
"tractor shop" or "package car shop"
depending on what vehicles were being repaired or maintained
in each. Decedent walked through the shop nearly every day to
get from his truck to the employee locker room. Decedent
would often stop in the shop to talk with mechanics while
employed its own mechanics to service the vehicles in its
fleet during the entirety of Decedent's employment.
Standard service tasks included maintaining and repairing
brakes. In any given week, between three and seven brake jobs
were performed in the shop. A typical brake job included
banging the brake drums on the ground and using compressed
air to clear off the brake dust. The brake pads used by UPS
during Decedent's employment contained asbestos, and
would release asbestos fibers into the air during brake jobs.
Starting in the mid-1980s, UPS provided protective masks to
the mechanics, but did not at any time provide a protective
mask to Decedent.
his employment with UPS, from 1999 until 2002, Decedent drove
a transfer van for Union County. He also worked for a church
and for Union County Schools. Decedent continued to work
part-time until 2012.
February 2013, Decedent was diagnosed with mesothelioma.
Prior to his death on 26 March 2016, Decedent filed a claim
with the Commission alleging that his mesothelioma developed
as a result of asbestos exposure during his employment with
presented testimony from two former UPS mechanics and two
medical experts. The mechanics testified that asbestos was
present at the Charlotte facility. The medical experts
testified that exposure to asbestos in the UPS facility
caused Decedent to develop mesothelioma or contributed to him
developing that disease. Defendants presented two expert
witnesses-an expert in industrial hygiene and an expert in
Deputy Commissioner issued an opinion and award finding that
Decedent was last injuriously exposed to asbestos, and the
hazards of developing mesothelioma, during his employment
with UPS. The Deputy Commissioner awarded Plaintiff 500 weeks
of wage compensation, calculated using Decedent's average
weekly wage from 1998 of $690.10, the last year he worked for
UPS, and limited by the maximum compensation rate for 1998,
so that Plaintiff was awarded $532.00 per week. The opinion
and award also compensated Plaintiff for the medical expenses
incurred treating Decedent's mesothelioma.
filed a motion for reconsideration of the maximum
compensation rate, arguing that the Deputy Commissioner
should have used the maximum compensation rate from 2015-the
date of Decedent's death. The Deputy Commissioner denied
parties appealed to the Full Commission. Defendants
challenged a majority of the Deputy Commissioner's
findings of fact and all but one of the conclusions of law.
Plaintiff challenged only the Deputy Commissioner's
calculation of the appropriate maximum compensation rate.
Commission, on 8 December 2016, issued its opinion and award
finding that Decedent's last injurious exposure to
asbestos, and the hazards of mesothelioma, occurred while he
was employed with UPS. The Commission recalculated and
substantially reduced Decedent's average weekly wage,
based on Decedent's earnings in the year prior to his
diagnosis with mesothelioma, when he was no longer employed
by UPS. Both parties appealed.
Standard of Review
review of an award from the Industrial Commission is
generally limited to two issues: (i) whether the findings of
fact are supported by competent evidence, and (ii) whether
the conclusions of law are justified by the findings of
fact." Chambers v. Transit Mgmt., 360 N.C. 609,
611, 636 S.E.2d 553, 555 (2006) (citation omitted).
Unchallenged findings of fact are presumed to be supported by
competent evidence, and findings of fact supported by
competent evidence are binding on appeal. Chaisson v.
Simpson, 195 N.C.App. 463, 470, 673 S.E.2d 149, 156
(2009). The Commission's conclusions of law are reviewed
de novo. McRae v. Toastmaster, Inc., 358
N.C. 488, 496, 597 S.E.2d 695, 701 (2004).
challenge the Commission's findings that (1) the brakes
used by UPS at its Charlotte facility while Decedent was
employed there contained asbestos and (2) Decedent was at an
increased risk of asbestos exposure during his employment
with UPS. Defendants also argue that Plaintiff failed to
present evidence that Decedent was not exposed to asbestos
during his subsequent employments, and therefore, the
Commission's finding that Decedent's last
injurious exposure to asbestos occurred at UPS is also
unsupported by the evidence. We disagree.
challenge the following findings of fact made by the Full
9. Vernon Thomas Pond worked as a mechanic for
defendant-employer from 1972 to 2003 in the same facility as
decedent. Mr. Pond testified, based upon his work and
experience as a mechanic, that all brake shoes he worked on
while employed by defendant-employer contained asbestos.
10. Bobby Bolin also worked for defendant-employer in
mechanics, mostly performing maintenance on tractors and
trailers. He began working for defendant-employer in or about
1967. Mr. Bolin testified that the work environment was
"pretty dusty" and, even though he knew brakes
contained asbestos as early as 1967, he was not aware that
asbestos dust "was bad" until the mid-1980s. Mr.
Bolin testified that defendant-employer provided mechanics
with masks to protect against dust exposure in the mid-1980s
and restricted the blowing of dust in the shop, but other
employees walking through the shop were not provided with
. . .
12. Based upon the preponderance of the evidence in view of
the entire record, the Commission finds that the brakes
utilized by defendant-employer in the maintenance of its
trucks, tractors, and trailers contained asbestos. The
competent and credible evidence of record demonstrates that
such brakes contained asbestos from the mid-1960s until at
least the mid-1980s and, to the extent the brakes continued
to contain asbestos from the mid-1980s until decedent's
retirement, decedent was not supplied with a protective mask
to curtail his exposure to asbestos fibers while in the shop.
. . .
23. Dr. Harpole testified that, although decedent did not
have "a giant exposure" to the hazards of asbestos
like someone who worked in an asbestos factory, being around
aerosolized asbestos in the air daily, or even every few days
over a period of years, led to significant asbestos exposure