## Facts

- Russell L. Johnson worked for Covil Corporation, an insulation and installation company, from 1957 until his retirement in 1987.
- During his Covil employment, Johnson was exposed to asbestos at many job sites; he worked as an insulator and foreman and later became Covil’s president.
- After retiring from Covil in 1987, Johnson worked from 1989 to 2006 for a business operated by his son-in-law, but he did not receive compensation for that work.
- In early 2006, Johnson was diagnosed with peritoneal mesothelioma, a rare cancer associated with asbestos exposure; he also had asbestos-related pleural disease.
- On June 5, 2006, Johnson filed a workers’ compensation claim with the North Carolina Industrial Commission based on his asbestos exposure. He died the next day, June 6, 2006.
- Edith L. Johnson, Johnson’s widow and sole dependent, acted as his representative and sought workers’ compensation death benefits, including by filing an amended form with the Commission in October 2006.
- The Industrial Commission found Johnson’s death resulted from occupational exposure to asbestos and awarded Edith death benefits for 400 weeks.
- To compute the award, the Commission used Johnson’s average weekly wage from his last full year with Covil (1987), found to be $807.69, and applied the statutory maximum compensation rate for 1987 ($308 per week), rather than the higher maximum rate in effect in 2006.
- Edith moved to amend or reconsider, arguing the Commission used the wrong statutory maximum rate. The Full Commission denied the motion, and Edith appealed.

## Issues

1. In an occupational-disease death-benefits claim, should the statutory maximum weekly compensation rate be the rate in effect at the employee’s death (2006) rather than the rate in effect during the last year of employment/last exposure (1987)?
2. May the Commission base average weekly wage on the employee’s last full year of paid employment with the defendant employer, while applying the later statutory maximum rate tied to the date the death claim accrues?

## Decision

- The Court of Appeals agreed with Edith in part, reversed the Full Commission’s denial of the motion to amend or reconsider, and remanded.
- The court held the Commission could use Johnson’s 1987 earnings with Covil to determine average weekly wage.
- The court held the Commission erred by using the 1987 statutory maximum compensation rate to cap Edith’s death benefits.
- On remand, the Commission was directed to recalculate the death-benefit award using the statutory maximum compensation rate in effect at the time of Johnson’s death, while keeping the average weekly wage calculation based on the 1987 wage finding.

## Legal Principles

- Statutory interpretation under the North Carolina Workers’ Compensation Act is reviewed de novo on appeal.
- In occupational-disease cases, the compensation rate is tied to the Act’s definition of the “time of injury,” which focuses on disability/death rather than the date of last exposure.
- A dependent’s claim for death benefits is a separate right that arises at the employee’s death.
- The Industrial Commission may determine average weekly wage using the employee’s earnings from the last full year of paid employment with the defendant employer, even when the disease manifests years later.
- The statutory maximum weekly compensation rate applicable to death benefits in an occupational-disease case is the maximum in effect when the death-benefit right arises (the date of death), not the maximum from the last year worked.

## Conclusion

The court required the Industrial Commission to keep its average weekly wage finding based on Johnson’s last full year of paid employment with Covil, but to recalculate the award using the statutory maximum compensation rate in effect at the time of Johnson’s death, because the dependent’s death-benefit claim arises at death in an occupational-disease case.


Johnson v. Covil Corporation, 711 S.E.2d 500 (2011)