Childress vs. Fluor Daniel

The North Carolina Court of Appeals issued two important opinions addressing workers’ compensation asbestos issues in the case of Childress v. Fluor Daniel, Inc. and Kemper Insurance Co.

Wallace & Graham attorneys Mona Lisa Wallace and Edward L. Pauley were involved in obtaining these important decisions.

The case involved an appeal by the Defendants, Fluor Daniel, Inc., and Kemper Insurance Company, from an Opinion and Award of the North Carolina Industrial Commission that awarded the plaintiff/victim, Jessie Bill Childress, $40,000 for permanent injury to his lungs and an additional $20,000 for permanent injury to his colon.

Mr. Childress was employed by Daniel International Corporation at the DuPont Facility in Brevard, North Carolina. He was exposed to asbestos while working at the facility.

Plaintiff presented expert medical testimony which showed that he had colon cancer and asbestosis in both lungs. This testimony linked these medical conditions to his workplace exposure to asbestos.

On 8 May 1997, plaintiff filed a claim alleging asbestosis and seeking workers' compensation benefits. He later added a claim for colon cancer.

On April 16, 2002, the Full Commission awarded Mr. Childress the sum of $20,000 for permanent injury to his colon, $20,000 for permanent injury to his left lung, and $20,000 for permanent injury to his right lung.

The Commission further directed that defendants pay all medical expenses incurred as a result of asbestosis and colon cancer.

The Defendants appealed the award to the North Carolina Court of Appeals.

On appeal, the employer argued that the lungs were only one organ. The Court of Appeals found that the lungs were two organs.

The defendants argued that the Industrial Commission erred in awarding plaintiff $40,000 for his lung damage. The Court disagreed, finding the Commission’s award was appropriate.

The employer argued that the employee’s settlements with asbestos manufacturers should have been offset against his workers’ compensation benefits. The Court of Appeals held that the employee’s other settlements would not be offset.

In the 2005 opinion, the Court of Appeals addressed the employee’s effort to ask the Trial Court to eliminate any right the employer had to offset the workers’ compensation benefits by the employee’s settlements with third party asbestos manufacturers.

The Trial Court said it did not have jurisdiction to address such a request.

The Court of Appeals held that the Trial Court could in fact eliminate the employer’s right to offset benefits and the employee received all of his benefits, if it desired.

The case decisions are cited as Childress v. Fluor Daniel, Inc., 162 N.C.App. 524, 590 S.E.2d 893 (N.C. App. 2004), and Childress v. Fluor Daniel, Inc., 172 N.C.App. 166, 615 S.E.2d 868 (N.C.App. 2005).

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