Ruling Goes Against Former Workers in Sick Building Case
BY DAVID SINCLAIR
The state appeals court has ruled against seven former Moore County employees who claim that a building where they worked made them sick in the early 1990s.
In a unanimous pinion released Tuesday, the state Court of Appeals upheld a decision by the N.C. Industrial Commission that the former employees failed to establish that they contracted an occupational disease while working at the Community Services building.
"I think the court got it exactly right in a very well-reasoned decision," said Raleigh attorney Matt Little, who represents the county insurance carrier, Sedgwick of the Carolinas. "These people were not exposed to any dangerous substances in that building."
The former employees had argued, among other things, that the commission failed to comply with a previous appeals court ruling and relied on incompetent medical testimony, according to the opinion.
George Lennon, the attorney for the former employees, said Wednesday that he was disappointed with the court's decision. He said he would have to talk with his clients before deciding whether to petition the state Supreme Court to consider an appeal. That is not automatic, since the appeals court ruling was unanimous.
"Statistically, the odds are not favorable," Lennon said of their chances for getting the state's highest court to hear the case. "It's an extremely frustrating situation for my clients, who are still seeking justice in their cases. We think this decision sets some unfortunate precedents."
The seven employees filed worker compensation claims against Moore County and its insurance company in the mid-1990s. The county and the insurance carrier have disputed the claims, arguing that there was no proof that the building made them sick.
The N.C. Court of Appeals sent the matter back to the Industrial Commission in December 2008, saying that it had not made the necessary findings of fact required to support its decision. It is the second time the appeals court has ordered the commission to go back and make the proper findings.
Lennon expressed frustration that the commission would not address some of the issues he has raised, such as spoliation of evidence that would back his claims.
He said the limited testing the county conducted was done only after the county had "sanitized" the building. He said the county removed carpet and ceiling tiles, improved the ventilation system and installed windows that would open and close, and then hired an environmental firm to test the building.
Lennon said there is clear medical evidence that the workers were exposed to pesticides and sewer gases, contrary to what the county claims. He also said experts hired by the county's insurance carrier testified that the illnesses can be attributed to "mass hysteria." He said that is actually contradicted by other testimony that their physical ailments could not result from psychological factors.
He cited results of nasal biopsies done on the employees that "were consistent with pesticide exposure," and welts that one of the workers had all over his body.
In the latest appeal, Lennon claimed that the industrial commission deprived them of the right to be heard before the commission issued its second decision in April 2009. He had asked that the commission either hear oral arguments r allow both sides to submit written briefs on a study performed by the Research Committee on Gulf War Veterans' Illnesses to back up his claims.
The appeals court concluded that the "record clearly demonstrates that plaintiffs did not file the statement and supporting briefs ... within the required 30-day period and elected to seek oral arguments before the commission instead." It said that had the plaintiffs "taken advantage of the opportunities" provided by the rules on workers' compensation, they would have had "ample opportunity to be heard on remand."
Lennon said Wednesday that less than 30 days after the appeals remanded the case back to the commission, it had already asked the attorney for the defendants to draft a new opinion, which the full commission approved, rejecting the former employees' claims.
"The commission rubber-stamped it," Lennon said. "No hearings. No briefs. No nothing. Of course we could have filed a brief, but the decision had already been made. It appears to us that no meaningful review occurred."
The employees also argued in court filings that the commission erred by failing to reopen the evidentiary record.
"However, except for requesting the commission to judicially notice the Research Advisory Committee Report, plaintiffs never described that additional evidence that they wished the commission to receive," the ruling said.
The appeals court had said in its earlier ruling that since the workers first filed their claims, medical science may have made advancements to understand the situation better, so the commission could consider reopening the case. But it was not mandated to do so.
"In view of the fact that the plaintiffs did not provide the commission with any additional information concerning the additional evidence they wished to present on remand except for the judicial notice request, we cannot say the commission abused its discretion by failing to reopen the case," the ruling said.
All of the employees worked in the Community Services building in the Moore County Office Park on Pinehurst Avenue in Carthage. The county bought the building in 1987.
The workers began talking among themselves about their health problems in 1994, and they began to suspect something in the building had made them sick. Their symptoms included chronic fatigue, skin lesions, respiratory and nervous problems, headaches, nausea, dizziness, swelling and mood swings.
A company called Ren Electronics made computer components there from 1980 to 1986. Some former Ren employees said chemicals were routinely dumped on the ground, on the floor and down the drains.
The county vacated the building in 1994, renovated it and had it tested. No toxins were detected in the air. The workers were moved back in, but some got sick again.
The county moved their departments out of the building again in 1995. The office portion of the building, which also has a large warehouse, has since been used only for storage. No employees work in the office portion of the building.
The seven employees filed the workers' compensation claims in 1995 and 1996.
In 2001, Deputy Commissioner Crystal R. Stanback, of the N.C. Industrial Commission, awarded Sharon Scott, Frankie McCaskill, Dawn Kidd, Frances Huffman and Deborah Rogers permanent and total disability compensation and awarded Tom Marsh and Roger Kennedy temporary total disability compensation, according to court records.
The full commission reversed that decision in 2005.
In 2007, the N.C. Court of Appeals said the Industrial Commission did not make the necessary findings to reject the workers' claims and remanded the case. The commission again rejected the claims that September 2008.
In the ruling issued in December 2008, the Court of Appeals again said that the Industrial Commission did not make the findings required to support its decision. It said the findings of fact must be more than a "mere summarization or recitation of the evidence."
The appeals court determined in its latest decision that the commission "complied with our mandate by revising its finding of fact to avoid the deficiencies ointed out" in its earlier ruling.
Lennon said the appeals court, much like the commission, doesn't have all of the facts straight. He contends the medical evidence overwhelmingly favors his clients.
But the appeals court did not get into taking sides over the medical testimony in the case.
"Although both plaintiffs and defendants expended significant energy debating the positions taken by their respective experts, we see no need to address that topic in any detail," the appeals court ruling says. "Reduced to its essence, the record reveals a sharp conflict in the evidence concerning the cause of the plaintiffs' symptoms, with one group of experts attributing those symptoms to employment-related exposure to toxic and pathogenic substances and the other group contending that plaintiffs' symptoms were psychological in nature."
The commission concluded that the testimony by the defendants' expert doctors was more credible than that of the plaintiffs. The appeals court concluded: "Such credibility judgments are the province of the commission, not the appellate courts."
Contact David Sinclair at at email@example.com.
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