Buchanan v. Workers' Compensation Com'r, 16096

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 318 S.E.2d 460,173 W.Va. 516
• Parties: Walter BUCHANAN v. WORKERS' COMPENSATION COMMISSIONER and Owens-Corning Fiberglass.
• Docket Number: No. 16096,16096
• Decision Date: 12 July 1984

Page 460

318 S.E.2d 460 173 W.Va. 516 Walter BUCHANAN
v.
WORKERS' COMPENSATION COMMISSIONER and Owens-Corning Fiberglass. No. 16096. Supreme Court of Appeals of West Virginia. July 12, 1984.

[173 W.Va. 517] Syllabus by the Court

1. The initial exposure criteria for disability benefits for occupational pneumoconiosis are found in W.Va.Code, 23-4-1.

2. W.Va.Code, 23-4-15b (1971), is a composite statute containing the various nonmedical determinations that the Workers'

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Compensation Commissioner must make when a claim for occupational pneumoconiosis benefits is filed.

3. The language in W.Va.Code, 23-4-15b (1971), as to whether the claimant was exposed over a period of not less than ten years during the fifteen years immediately preceding the date of his last exposure, is a nonmedical finding that the Commissioner is required to make in order to determine if the claimant is entitled to the presumption created in W.Va.Code, 23-4-8c(b).

Walton Auvil, Assoc. Atty., Sherl F. Shinaberry, Charleston, for appellant.

Roy D. Baker, Jr., Wood, Grimm & Delp, Huntington, for appellees.

MILLER, Justice:

This is an appeal from an order of the Workers' Compensation Appeal Board dated November 9, 1983, which affirmed the State Workers' Compensation Commissioner's ruling rejecting Walter Buchanan's application for occupational pneumoconiosis benefits on the ground that the claimant was not exposed to the hazards of the disease for the statutory period. For the reasons set forth below, we reverse.

On June 5, 1980, the claimant filed an application for occupational pneumoconiosis benefits, accompanied by a physician's report with a medical diagnosis of asbestosis. ¹ On December 30, 1980, the Commissioner found that the record presented insufficient evidence that claimant had been exposed to the hazards of occupational pneumoconiosis and ordered hearings on a number of nonmedical issues. ²

At the hearings the only testimony taken on these questions was from the claimant who testified that he had worked in the asbestos industry since 1953. He stated that during the period between 1954 and 1970, he worked at several jobs in West Virginia that required exposure to asbestos insulating material. From 1970 to 1973, the claimant was employed by seven different employers in West Virginia performing duties that involved asbestos.

In 1973 he was employed by Brand Insulation at the John Amos Power Plant in St. Albans, West Virginia, for nine months. The claimant had no employers in West Virginia in 1974. In August and September of 1975, he was employed by Ohio Valley Insulating Company in Gallipolis Ferry, West Virginia; from October to December of that year, he was again employed by Brand Insulation Company. Finally,[173 W.Va. 518] the claimant testified that he was employed by appellee, Owens-Corning Fiberglass, for the entire twelve months of 1976. He had no West Virginia employers in 1977, but worked with asbestos for approximately three months in 1978. Regarding the timeliness of his claim, the claimant testified that a physician first informed him that he had occupational pneumoconiosis in 1977.

On the basis of the claimant's testimony at the hearings, the Commissioner, by order dated October 1, 1982, rejected the claimant's application for benefits on the grounds that it was not timely filed and that the claimant had failed to establish that he had been exposed to the hazards of occupational pneumoconiosis for the requisite statutory period. The claimant appealed this ruling to the Workers' Compensation Appeal Board on the factual question

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of whether the evidence disclosed exposure for the required statutory period.

The Appeal Board found that the claimant's application had been timely filed, ³ but affirmed the Commissioner's nonmedical findings on the exposure question. The Board used two...