690 S.E.2d 102 (W.Va. 2009), 34473, Casdorph v. West Virginia Office Ins. Com'r

Docket Nº:34473.
Citation:690 S.E.2d 102, 225 W.Va. 94
Opinion Judge:PER CURIAM:
Party Name:Robert H. CASDORPH, Jr., Appellant, v. WEST VIRGINIA OFFICE INSURANCE COMMISSIONER and West Virginia State Police, Appellees.
Attorney:Dean R. Hartley, Esq., Hartley & O'Brien, PLLC, Wheeling, WV, E. William Harvit, Esq., Harvit & Schwartz, Charleston, WV, for Appellant. Jon H. Snyder, Esq., Workers' Compensation Litigation Unit, Charleston, WV, for Appellee.
Case Date:November 19, 2009
Court:Supreme Court of Appeals of West Virginia

Page 102

690 S.E.2d 102 (W.Va. 2009)

225 W.Va. 94

Robert H. CASDORPH, Jr., Appellant,

v.

WEST VIRGINIA OFFICE INSURANCE COMMISSIONER and West Virginia State Police, Appellees.

No. 34473.

Supreme Court of West Virginia.

November 19, 2009

Submitted Oct. 6, 2009.

Page 103

[225 W.Va. 95] Syllabus by the Court

1. " When it appears from the proof upon which the Workmen's Compensation Appeal Board acted that its finding was plainly wrong an order reflecting that finding will be reversed and set aside by this Court." Syllabus Point 5, Bragg v. State Workmen's Comp. Comm'r, 152 W.Va. 706, 166 S.E.2d 162 (1969).

2. " In order for a claim to be held compensable under the Workmen's Compensation Act, three elements must coexist: (1) a personal injury (2) received in the course of employment and (3) resulting from that employment." Syllabus Point 1, Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970).

3. " In determining whether an injury resulted from a claimant's employment, a causal connection between the injury and employment must be shown to have existed." Syllabus Point 3, Emmel v. State Compensation Director, 150 W.Va. 277, 145 S.E.2d 29 (1965).

4. " 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 a hazard and is suffering from the disease to which it is connected." Syllabus Point 5, Powell v. State Workmen's Compensation Commissioner, 166 W.Va. 327, 273 S.E.2d 832 (1980).

5. " 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." Syllabus Point 3, Powell v. State Workmen's Compensation Commissioner, 166 W.Va. 327, 273 S.E.2d 832 (1980).

Dean R. Hartley, Esq., Hartley & O'Brien, PLLC, Wheeling, WV, E. William Harvit, Esq., Harvit & Schwartz, Charleston, WV, for Appellant.

Jon H. Snyder, Esq., Workers' Compensation Litigation Unit, Charleston, WV, for Appellee.

PER CURIAM:

This case is before this Court upon the appeal of Robert H. Casdorph, Jr. 1 (hereinafter " Appellant" ) from a final order of the Workers' Compensation Board of Review (hereinafter " BOR" ) 2 entered December 20, 2006. In that order, the BOR reversed the decision of the Office of Judges (hereinafter " OOJ" ) which had reversed the decision of the Workers' Compensation Commission (hereinafter " Commission" ).3 The Commission initially rejected the Appellant's claim finding that his condition, chronic myelogenous leukemia (hereinafter " CML" ), was not compensable as an occupational disease. After the OOJ found that the Appellant's claim should be held compensable, the BOR reversed the decision of the OOJ finding that the expert testimony relied upon by the OOJ was insufficient to establish that Appellant had an occupational disease within the meaning

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[225 W.Va. 96] of West Virginia Code § 23-4-1(f).4 In this appeal, the Appellant contends that the BOR erred by reversing the decision of the OOJ, and he maintains that his claim should have been held compensable. Upon review of the parties arguments, the record on appeal, and the pertinent authorities, we reverse the decision of the BOR and remand the case with directions to reinstate the decision of the OOJ, holding the Appellant's claim compensable as an occupational disease.

I.

FACTUAL AND PROCEDURAL HISTORY

Appellant worked as a mechanic for the West Virginia State Police for approximately twenty-two years.5 As a mechanic, Appellant worked on and replaced brakes and brake rotors, transmissions, replaced air filters, greased bearings, replaced fuel filters, changed tires, replaced batteries, and changed oil and oil filters, among other mechanical duties. In performing such duties, he often used petroleum-based products to degrease and lubricate parts and he had repeated daily dermal contact with and inhalation of gasoline. Appellant's exposure was particularly significant when he cleaned and reassembled vehicle parts without gloves, when gasoline and degreasers dripped and sprayed onto his exposed skin and clothing, and when he ingested gasoline as a result of siphoning gas from and to vehicle fuel tanks by mouth while performing fuel pump repairs. His primary work area was very small with no exhaust fan.

Appellant testified that when he worked around gasoline, he would get dizzy, lightheaded and " a little bit sick" approximately three of five work days. Appellant's wife testified that the Appellant would often mention to her that he felt dizzy from the fumes at work. She also testified that two to three nights a week, Appellant would feel nauseous and dizzy when he came home from work, and thus, would delay eating dinner. She also testified that when he came home from work, Appellant had a terrible odor that smelled like paint thinner on his clothing.

In January, 2002, Appellant developed a severe cough. He was evaluated by his family physician, Brad Henry, M.D., who discovered that his white blood count was abnormally high. Appellant was referred to James Frame, M.D., who ordered a bone marrow core biopsy which revealed that Appellant had CML in an accelerated phase. He was initially treated with the medication Gleevec. Between January and June, 2002, Appellant was seen numerous times by Dr. Frame for clinical evaluation and laboratory studies. A June 12, 2002, bone marrow test showed that Appellant was in Gleevec induced remission from CML.

Thereafter, in July, 2002, Appellant was evaluated by Dr. Richard Shadduck, Director

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[225 W.Va. 97] of the Western Pennsylvania Cancer Institute. Appellant continued to be evaluated by Dr. Frame and Dr. Shadduck and he underwent several bone marrow procedures. In March, 2003, Appellant's bone marrow studies showed that his CML had returned. At that time, he was admitted to Western Pennsylvania Hospital for induction of chemotherapy. Continuing to be evaluated and treated by Dr. Shadduck, Appellant was admitted to Western Pennsylvania Hospital for a bone marrow transplant by an unrelated donor in July 2003.

In March 2004, Appellant was admitted to the hospital for nausea and vomiting. A CT scan revealed nodules in the lung consistent with pulmonary aspergillosis and on March 18, 2004, he developed a rash and sinusitis. Appellant never recovered and he died on April 9, 2004, at the age of 50. An autopsy revealed that the claimant had adult respiratory distress syndrome and it was noted that the claimant died a respiratory death.

Prior to his death, Appellant had filed a Workers' Compensation claim in April, 2003, indicating that he had suffered from CML has a result of exposure to benzene while working as a mechanic for the State Police. The Division's Office of Medical Management reviewed the claim record and recommended the claim be rejected. In a report dated June 23, 2003, Mohammed I. Ranavaya, M.D., M.S., FRCPI, CIME, FAADEP, stated:

In summary, this gentleman has a very serious blood disorder, however, based on the evidence in record and the Peer Reviewed Scientific Literature, it cannot be causally connected to the nebulous claim of exposure to aromatic compounds in this job as a mechanic for the West Virginia Division of Public Safety. To accept this claim as an occupational disease, in my opinion, would simply be cost shifting of a naturally occurring disease process to a Workers' Compensation Insurance claim.

Based upon Dr. Ranavaya's report, the Commission entered an order rejecting his claim on June 30, 2003, finding that he had failed to meet his burden of proof establishing that the disease was contracted in the course of or resulting from employment. The Commission found that the condition was an ordinary disease of life and that he had been aware of his condition for more than three years prior to filing his claim. Appellant timely protested that order.

The parties submitted various depositions, scientific and medical articles and medical reports to the OOJ for consideration. On August 4, 2005, the OOJ reversed the decision of the Commission, finding, in part, that:

The medical issue is extremely complex and has been extremely well developed through battling highly paid, highly qualified medical experts. It is found that the scientific community and medical profession in general accept that abnormally high exposure to benzene can cause AML. The more difficult question is whether or not it can significantly contribute to CML. It is obvious that the medical profession and the scientific community does not accept that the relationship between benzene exposure and CML has been proven to the extent that it has with AML. The claimant has quoted numerous case studies primarily from China, France and Australia that demonstrate that there is a statistical significance between individuals who are exposed to high concentrations of benzene and the disease CML. This record does contain qualified experts that do not believe these case studies are persuasive and also criticize them for methodology and the size of the study.

This is an extremely close case. Dr. Shadduck the treating physician was candid in admitting that until recently he did not believe that CML had a known cause. Based on the research he did specifically due to the claimant's condition he arrived at the opinion that based upon the benzene exposure of the claimant that it was probable that this was a significant factor in his disease. Dr. Shadduck admitted the benzene exposure was not a factor to his knowledge in any other patient he treated. However, Dr. Shadduck's testimony is found significant in that his testimony was found to be well reasoned and he was also willing to concede that his opinion could not definitely be...

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