Ruling Favors Ex-Employees of County

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Ruling Favors Ex-Employees of County

http://www.thepilot.com/stories/20081219/news/local/20081219County.html

BY DAVID SINCLAIR: MANAGING EDITOR

Seven former County employees can continue pursuing their worker

compensation claims that a county building made them sick in the early 1990s,

the N.C. Court of Appeals ruled Tuesday.

The seven employees filed worker compensation claims against County and

its insurance company, Sedgwick of the Carolinas, in 1995 and 1996. The county

and the insurance carrier have disputed the claims, arguing that there was no

proof that the building made them sick.

In 2001, Deputy Commissioner Crystal R. Stanback, of the N.C. Industrial

Commission, awarded Sharon , ie McCaskill, Dawn Kidd, Frances Huffman

and Deborah permanent and total disability compensation and awarded Tom

Marsh and Kennedy temporary total disability compensation, according to

court records. The full commission overturned 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 sent the case back to

the commission. It again rejected the claims that September.

In the ruling issued this week, the Court of Appeals again said that the

Industrial Commission did not make the findings required to support its

decision. It ordered the Industrial Comm-ission to do the case over and list

its findings as required to support whatever decision it makes. " This court has

long recognized that the Industrial Commission is the sole fact-finding agency

in cases in which it has jurisdiction, and that the finding of facts is one of

the primary duties of the commission, " the ruling said. " The findings of fact

of the Industrial Commission should tell the full story of the event giving

rise to the claim for compensation. They must be sufficiently positive and

specific to enable the Court of Appeals to determine whether they are supported

by the evidence and whether the law has been properly applied to them.

Moreover, findings of fact must be more than a mere summarization or recitation

of the evidence, and the commission must resolve the

conflicting testimony.

" In (this) case, the commission filed an opinion with more than 100 findings of

fact. Many of these recited or summarized the witness testimony, but did not

state the facts that the commission found to exist based on that testimony. "

The appeals court also said 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.

" We also note that expert testimony in this case reflects the uncertainty about

fibromyalgia and multiple chemical sensitivity that existed when the

depositions were taken, " the ruling said. " However, plaintiffs originally filed

their workers' compensation claims more than 10 years ago, and in the

intervening years the medical community may have gained a greater understanding

of these conditions. Accordingly, the commission may, in its discretion, reopen

the case for new evidence. "

Fibromyalgia is one of the most common chronic widespread pain conditions,

affecting millions of people in the United States, according to various medical

Web sites.

The causes of fibromyalgia are still not fully known, but recent data suggest

that changes in the central nervous system may contribute to the chronic pain of

this condition. Other symptoms include chronic fatigue, sleep disturbance and

joint stiffness.

But some experts still consider it a controversial diagnosis because of the

lack of laboratory testing to confirm it.

Lennon, a Raleigh attorney specializing in workers' compensation cases

who represents the employees, said he was encouraged by the decision.

" It is extraordinary that they (appeals court) have remanded this case to the

Industrial Commission twice, " Lennon said Thursday. " It is a clear signal that

they want the Industrial Commission to revisit this case. The commission did not

seem to be aware of the facts in this case. "

Among the issues Lennon specifically cited was a claim by the county that no

other employees, other than these seven who worked in the building, became ill.

" That is simply not true, " Lennon said. " These folks' own supervisor testified

that he was sick. "

Lennon said he is confident that the seven employees will prevail, based on the

facts and the evidence presented.

" We've got a case in which the medical evidence of cause-and-effect is

indisputable, " he said.

All of the employees worked in the Community Services Building in the

County Office Park on Pinehurst Avenue in Carthage. The Health Department and

Agricultural Center are also in the park. 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. It replaced carpet and ceiling tiles

-- potential sources of contamination -- and installed windows that opened to

improve ventilation. The workers were moved back in, but some got sick again.

The county moved their departments out of the building again in 1995.

Tests for toxins found nothing in the air. A small amount of methane detected

was in soil under part of the building.

Lennon pointed out that the county hired a consultant to test the building only

after it had completed the renovation work.

" The testing, very limited testing, was done after the county had sanitized the

building, " he said.

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, according to County Manager Cary McSwain.

McSwain said he could not comment on the case because it is still pending. The

Pilot was unable to reach for comment the attorney for the county and its

insurance carrier.

Lennon said he hopes the seven-member commission, which sits in panels of

three, will reopen the case.

" We hope they will refamiliarize themselves with this case, " he said. " I know

they have a lot of cases to contend with, but this one has been sent back twice

now. They need to be sure the issues are understood and the facts are

understood. We want to see justice done. "

Contact Sinclair at 693-2462 or by e-mail at dsinclair@....