|Michael F. Easley, Governor
Buck Lattimore, Chairman
|Bernadine S. Ballance,
Thomas J. Bolch, Commissioner
Laura K. Mavretic, Commissioner
Renée C. Riggsbee, Commissioner
Christopher Scott, Commissioner
Dianne C. Sellers, Commissioner
October 18, 2001
ORDER IN ASBESTOS/SILICA CLAIMS
The Industrial Commission hereby adopts the attached Order in Asbestos/Silica Claims to standardize examinations and the discovery procedure in these kinds of occupational disease cases.
NORTH CAROLINA INDUSTRIAL COMMISSION
I.C. No. , Employee, Plaintiff; Employer; Carrier; Defendants.
ORDER IN ASBESTOS/SILICA CLAIMS by , DEPUTY COMMISSIONER
An asbestos/silica related injury claim has been filed in the above captioned case.
A P P E A R A N C E S
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IT IS HEREBY ORDERED that the parties shall comply with the following:
1. Any claimant, upon a diagnosis of an asbestos or silica related disease, may file a claim with the North Carolina Industrial Commission within the time allowed by statute. The claim should be filed on a Form 18B.
2. A Form 18B should be signed by the claimant (or claimant’s representative) and counsel. The Form 18B should indicate: (a) the date of diagnosis; (b) the physician providing the diagnosis; (c) the names and addresses, if known, of all other medical providers for the 20 year period prior to the diagnosis; and (d) any other information required on the Form 18B.
3. Contemporaneously with the filing of the Form 18B, plaintiff shall provide the North Carolina Industrial Commission with all diagnosing medical reports which form the basis of the claim. These reports shall be attached to the Form 18B and served on defendant(s).
4. Upon filing the Form 18B with the North Carolina Industrial Commission, the Commission shall acknowledge the claim and notify all named defendant(s) and carrier(s) on the risk during the relevant period of time. The employer should promptly identify to the Commission and plaintiff the carrier(s) for the period of plaintiff’s employment.
5. Upon notice of the claim, defendant(s) shall be requested to pay for a panel examination without prejudice. ("Panel examination" means examination by the three-member Advisory Medical Committee for dusty trade employers and examination by a member of the N.C. Industrial Commission Occupational Disease Panel for non-dusty trade employers.) The Deputy Commissioner assigned to the case shall determine the proper timing for the scheduling of a panel examination.
6. If defendant(s) approves payment for a panel examination or if one is ordered pursuant to the provisions of Chapter 97, plaintiff shall be duly notified by the Industrial Commission to appear at a time and place for an examination by a panel physician who will be chosen with due regard to the location and health of the employee. The examination will be conducted by the physician according to his/her discretion and should include, but not be limited to, a physical examination, chest x-ray and pulmonary function test. CT scans may be conducted upon order of the Industrial Commission.
The parties shall agree on and submit one package of plaintiff’s medical records, films, etc., to the panel physician. The records shall be separated and labeled by the name of the provider, area of specialty, if applicable, and as nearly as possible, should be in chronological order. The pages shall be numbered and an index for the entire document shall be provided.
If the parties have not agreed upon the package of medical records to be submitted to the panel physician within 30 days prior to the appointment date, then either party may request an order from the Deputy Commissioner to resolve the dispute. No party shall send independent medical examination or consultative reports of any kind to the panel physician without the agreement of the other parties.
7. If defendant(s) does not approve payment of the panel examination or file a written response within 30 days of the receipt of the request, defendant(s) may not thereafter request a continuance of the hearing or the mediation of the case because of the absence of a panel examination.
8. If defendant(s) refuses to pay for the panel examination, the Commission shall notify the parties that if plaintiff, in a motion to the Commission, shows good grounds (likely exposure to asbestos or silica while employed by defendant(s) and a threshold showing of lung or pleural condition), the Industrial Commission may order the panel examination at defendant’s expense. Such motion shall be directed to the attention of the Chief Deputy Commissioner or the Deputy Commissioner assigned to the case. A conference call or hearing may be conducted.
9. The Industrial Commission will not refer to mediation or set a case for hearing, except a hearing relating to discovery issues and pre-trial problems, until the panel examination has been sent to the parties or until defendant’s refusal to pay for a panel exam has been acknowledged or until defendant's time period for responding to a request for approval of a panel examination has elapsed.
10. Defendant(s) is entitled to an independent medical examination by a physician of its choice at reasonable times and places as provided in N.C. Gen. Stat. § 97-27, provided the examination is requested no later than 30 days after defendant’s receipt of the panel examination report. Such examination shall be scheduled in a manner which will not unduly delay the resolution of the claims.
11. Defendant(s) shall pay all reasonable costs incurred including meals, travel, and hotel costs resulting from the panel and/or the independent medical examination of plaintiff.
12. In the event an independent medical examination is requested, plaintiff shall make all recent (7 years) chest films available to defendant(s) for independent review upon return of such films from the panel physician. Defendant(s) shall return all chest films to plaintiff within 45 days after receipt unless circumstances demand otherwise.
IT IS FURTHER ORDERED that the parties shall comply with the following related to discovery:
1. The parties shall have 180 days for discovery from the time that all defendants are added, but beginning no later than 120 days after the Form 18B is filed. The period for discovery may be extended by order of the Commission.
2. For good cause shown, the provisions of Rule 605 of the Workers' Compensation Rules limiting the number of interrogatories may be waived. If the rule is waived, interrogatories must still be submitted in good faith. The parties shall not file frivolous discovery requests or make frivolous objections.
3. Plaintiff or counsel shall provide medical records to defendant(s) in response to a Rule 607 request of defendant(s).
4. Should defendant(s) request other related medical records of plaintiff for the 20 year period immediately preceding the diagnosis, plaintiff may either produce copies of those records or provide a medical authorization allowing defendant(s) to acquire any medical records not produced. If a medical release is given by plaintiff to defendant(s), defendant(s) shall furnish to plaintiff or his/her counsel copies of all medical records obtained within 30 days of the receipt. Neither party shall be required to produce medical records or a release for consulting physicians not designated as a diagnosing physician or as a medical witness for hearing.
5. Upon request of defendant(s), plaintiff shall promptly provide all original radiographs, CT scans or other chest films from the previous 7 years to each defendant(s) for review or shall provide medical releases to defendant(s) for all such films. However, the films must be returned to plaintiff or appropriate medical personnel within 45 days. In appropriate circumstances, the Industrial Commission may set forth a different time period and means of exchange of these records.
6. At the request of defendant(s), plaintiff shall furnish a Social Security authorization to allow defendant(s) to obtain plaintiff’s Social Security earnings records. Defendant(s) shall provide a copy of the records obtained to plaintiff or his/her counsel
within 30 days after the receipt. If plaintiff has already acquired Social Security earnings records, plaintiff shall provide those records in lieu of an authorization to defendant(s).
7. At the request of plaintiff, defendant(s) shall furnish a complete copy of plaintiff’s personnel file including medical records.
8. If plaintiff has filed a third party lawsuit or any other litigation based upon exposure to asbestos, plaintiff shall, upon motion from defendant(s) and Order of the Industrial Commission, or by agreement, provide the names of defendant(s), the case number and the jurisdiction in which the case is filed and produce any pleadings, discovery responses, depositions or other statements of plaintiff allowed by the Commission. Such records may be produced by plaintiff or made available for review and copying by defendant(s).
9. Upon written request of defendant(s), plaintiff shall provide to defendant(s) the total monetary amount received by plaintiff from third party lawsuits or settlements against manufacturers or distributors of asbestos or other defendants. Such information shall be provided to defendant(s) at least 14 days prior to mediation and shall be current. Plaintiff shall be obligated to provide subrogation information to defendant(s) only upon discovery requests or upon order from the Commission.
10. All motions and filings shall indicate all named parties, named carriers and respective counsel and indicate proper service on each. If these cases are assigned to a Deputy Commissioner, motions and filings shall be sent to that Deputy Commissioner. If the parties are unsure whether a Deputy Commissioner has been assigned to coordinate discovery in asbestos/silica cases, the parties should contact the Chief Deputy Commissioner.
IT IS FURTHER ORDERED that in the event the parties wish to proceed to hearing after mediation, the parties shall follow the following procedure:
1. Within 45 days after an unsuccessful mediation the parties shall submit a duly executed Pre-Trial Agreement to the Industrial Commission. The Pre-Trial Agreement shall advise the Commission of the expected length of trial, include all jurisdictional stipulations, identify all witnesses, identify all exhibits and identify the issues being raised by the parties. All stipulated exhibits are to be submitted at the hearing.
2. Failure of any party to comply with this Order may result in the imposition of sanctions.
3. No further costs are assessed at this time.