Powell v. State Workmen's Compensation Com'r

Citation166 W.Va. 327,273 S.E.2d 832
Decision Date19 December 1980
Docket NumberNo. 14917,14917
Parties, 19 A.L.R.4th 630, 1981 O.S.H.D. (CCH) P 25,151 Valena P. POWELL, Widow, etc. v. STATE WORKMEN'S COMPENSATION COMMISSIONER and West Virginia Board of Regents.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. Lung cancer can be an occupational disease within the meaning of this State's Occupational Disease Statute, W.Va.Code § 23-4-1, even though it is an ordinary disease of life which occurs in the general public.

2. West Virginia's Occupational Disease Statute, W.Va.Code § 23-4-1, provides coverage for each new occupational disease as medical science verifies it and establishes it as such, without the need for special legislative recognition by addition to the scheduled diseases.

3. W.Va.Code § 23-4-1 does not require a claimant to prove that the conditions of his employment were the exclusive or sole cause of the disease nor does it require the claimant to show that the disease is peculiar to one industry, work environment, or occupation.

4. A claimant in an occupational disease case is not required to negative all possible non-occupational causes of the disease.

5. If studies and research clearly link a disease to a particular hazard of a workplace, a prima facie case of causation arises upon a showing that the claimant was exposed to the hazard and is suffering from the disease to which it is connected.

Mike Magro, Jr., Morgantown, for appellants.

Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellees.

McGRAW, Justice.

This important appeal involves the interpretation and application of our Workmen's Compensation Laws. The principle question presented is whether lung cancer causally related to occupational exposure to asbestos dust can be a compensable occupational disease under the terms of W.Va.Code § 23-4-1. We answer that question in the affirmative and hold that lung cancer can be an occupational disease within the meaning of this State's Occupational Disease Statute, W.Va.Code § 23-4-1, even though it can also be an ordinary disease of life which occurs in the general public.

On September 23, 1974, Mrs. Valena Powell filed a claim for widow's dependency benefits under the provisions of W.Va.Code § 23-4-10, which provides for death benefits where the employee's death results from occupational pneumoconiosis or from any other occupational disease.

The Workmen's Compensation Commissioner originally rejected the claim but on protest he set aside his ruling, held that the exposure requirements of the Act had been established, and referred the case to the Occupational Pneumoconiosis Board. During the course of the proceedings before the Board, the claimant's position was that her husband's exposure to asbestos dust during the course of his employment was a contributing factor to the cancerous lung condition causing his death. The Board found that the employee's death was not due to occupational pneumoconiosis and that occupational pneumoconiosis was not a contributing factor in his death.

The claimant protested these findings, contending the Board failed to consider and apply the occupational disease standards set forth in W.Va.Code § 23-4-1. Despite the claimant's contention below, both the Commissioner and the Appeal Board affirmed the Occupational Pneumoconiosis Board's findings and rejected the claimant's dependency claim on the limited grounds that the "employee's death was not due to occupational pneumoconiosis, nor was occupational pneumoconiosis a major contributing factor to his death."

The claimant appeals from that order, advancing the same argument here as advanced below. The Attorney General, as counsel for the Board of Regents, beseeches this Court to follow the law rather than its heart by affirming the Appeal Board. Irrespective of the Attorney General's plea, we conclude that the Appeal Board's failure to consider whether the deceased employee's lung cancer was a compensable occupational disease was clear legal error and requires reversal. Because the Appeal Board either overlooked this contention or assumed without deciding that lung cancer, by itself, cannot constitute an occupational disease within the meaning of W.Va.Code § 23-4-1, it failed to make factual findings on the medical issues presented in the case. Syl. pt. 2, Workman v. State Compensation Commissioner, W.Va., 236 S.E.2d 236 (1977). For this reason, the case must be remanded. Lilly v. State Compensation Commissioner, W.Va., 225 S.E.2d 214 (1976).

Our occupational disease statute has covered occupational diseases other than those specifically listed in the statute since it was amended in 1949 W.Va. Acts ch. 136. The definition of an occupational disease contained in the statute has remained unchanged since that amendment. In pertinent part the statute reads as follows:

For the purposes of this chapter (23), occupational disease means a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside of the employment shall be compensable except when it follows as an incident of occupational disease as defined in this chapter. Except in the case of occupational pneumoconiosis, a disease shall be deemed to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease, (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, (3) that it can be fairly traced to the employment as the proximate cause, (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment, (5) that it is incidental to the character of the business and not independent of the relation of employer and employee, and (6) that it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

An employee shall be deemed to have contracted an occupational disease within the meaning of this paragraph if the disease or condition has developed to such an extent that it can be diagnosed as an occupational disease.

This Court first recognized the significance of the 1949 amendment in Miles v. State Compensation Commissioner, 136 W.Va. 183, 67 S.E.2d 34 (1951). There the claimant, a welder at Union Carbide and Carbon Corporation, filed a claim for compensation contending that his physical condition, diagnosed by a physician as acute bronchitis, was due to the inhalation of vadium oxide dust in the course of his employment. The Occupational Disease Medical Board reported that the statutory prerequisites to compensability were present. Although the case was ultimately decided upon the narrow ground that the claimant had not been afforded an opportunity to fully develop his case, the Court noted that the Legislature had amended the statute to specifically compensate for occupational diseases other than silicosis. Prior to the amendment, silicosis was the sole occupational disease specifically compensable. The Court also correctly observed that the determination of whether the prerequisites of W.Va.Code § 23-4-1 have been satisfied involves both "nonmedical and medical inquiries." Id. at 188, 67 S.E.2d at 37.

In the last thirty years, this Court has had occasion to decide several other occupational disease cases under the statute. In Shrewsbury v. State Workmen's Compensation Commissioner, 155 W.Va. 794, 187 S.E.2d 597 (1972), the Court, in affirming the Appeal Board, concluded that occupational pneumoconiosis was an occupational disease separate and apart from silicosis. The statute under consideration there did not specifically designate occupational pneumoconiosis as a compensable occupational disease as does the statute today. Nonetheless, the Court held that occupational pneumoconiosis was an occupational disease under the statutory criteria.

In Clark v. State Workmen's Compensation Commissioner, 155 W.Va. 726, 187 S.E.2d 213 (1972) the Appeal Board awarded benefits to the widow of a deceased employee who, following occupational exposure to a number of toxic chemicals, died from acute myeloblastic leukemia. The medical testimony adduced in the proceedings was interpreted by the court to establish that the cause of this type of leukemia was unknown. This Court reversed on the ground that there was no proof establishing a causal connection between the leukemia and the deceased employee's work place.

It has also been held that, "(c)hronic bronchitis is ordinarily not considered an occupational disease and is not compensable unless there is sufficient proof that it was contracted in the course of and as a result of employment." Syl. pt. 2, Huff v. State Workmen's Compensation Commissioner, 157 W.Va. 530, 202 S.E.2d 383 (1974), citing, Ratcliff v. State Workmen's Compensation Commissioner, 146 W.Va. 920, 123 S.E.2d 829 (1962).

More recently, we held that a back injury which develops gradually is an occupational disease within the meaning of the statute where it results from the repeated performances of a specific job assignment. Lilly v. State Workmen's Compensation Commissioner, W.Va., 225 S.E.2d 214 (1976).

And finally in Myers v. State Workmen's Compensation Commissioner, W.Va., 239 S.E.2d 124 (1977), we held that claimant's noise-induced gradual hearing loss was an occupational disease under the statute. In making this ruling we held it was not necessary for the claimant to prove that his hearing loss was not attributable completely to his age, and held that "it is not claimant's burden to negative all possible...

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