Fenton Art v. W.Va. Office of Ins. Com'R
| Decision Date | 26 June 2008 |
| Docket Number | No. 33673.,33673. |
| Citation | 664 S.E.2d 761 |
| Court | West Virginia Supreme Court |
| Parties | FENTON ART GLASS COMPANY, Appellant, v. WEST VIRGINIA OFFICE OF the INSURANCE COMMISSIONER and Jack L. Garrison, Appellees. |
Syllabus by the Court
1. "When the [Workers' Compensation Board of Review] reviews a ruling from the [Office of Judges] it must do so under the standard of review set out in W. Va.Code § 23-5-12(b) (1995), and failure to do so will be reversible error." Syllabus point 6, Conley v. Workers' Compensation Division, 199 W.Va. 196, 483 S.E.2d 542 (1997).
2. Syllabus point 3, Hodge v. Ginsberg, 172 W.Va. 17, 303 S.E.2d 245 (1983).
3. "In a claim for occupation pneumoconiosis under the Workmen's Compensation Law, a `hazard,' as contemplated by Code, 23-4-1, as amended, exists in any work environment where it can be demonstration that there are minute particles of dust in abnormal quantities." Syllabus point 1, Meadows v. Workmen's Compensation Commissioner, 157 W.Va. 140, 198 S.E.2d 137 (1973).
4. "` Syllabus point 1, Rhodes v. Workers' Compensation Division, 209 W.Va. 8, 543 S.E.2d 289 (2000).
5. Syllabus point 3, Boley v. Miller, 187 W.Va. 242, 418 S.E.2d 352 (1992).
Ann B. Rembrandt, Esq., Jackson & Kelly, Charleston, WV, for the Appellant-Employer, Fenton Art Glass Company.
Thomas P. Maroney, Esq., Maroney, Williams, Weaver & Pancake, PLLC, Charleston, WV, for the Appellee-Claimant, Jack L. Garrison.
This is an appeal by Fenton Art Glass Company (hereinafter "employer") from a final order of the Workers' Compensation Board of Review (hereinafter "BOR"), dated May 30, 2006, which affirmed an interlocutory order of the Workers' Compensation Office of Judges (hereinafter "OOJ") dated September 4, 2003, and which reversed and vacated the final order of the OOJ dated December 15, 2003. The BOR furthermore granted to the claimant, Jack L. Garrison (hereinafter "claimant"), a 5% permanent partial disability award for occupational pneumoconiosis.
The underlying September 4, 2003 interlocutory order of the OOJ affirmed the February 16, 1998, order of the Workers' Compensation Commission (hereinafter "Commission"), which held this claim compensable on a non-medical basis subject to the presumption of West Virginia Code § 23-4-8c(b) (2005),1 with a date of last exposure of November 4, 1997. The underlying December 15, 2004, order of the OOJ affirmed the Commission's June 18, 1998, order which granted claimant no award for disability attributed to occupational pneumoconiosis. The employer contends that the BOR erred in affirming the OOJ on the non-medical issue and in reversing the OOJ and in granting claimant a 5% award, on the medical issue.
This Court has before it the petition for appeal of the employer, all matters of record, and the briefs and arguments of the employer and the claimant. For the reasons set forth below, the May 30, 2006, order of the BOR is affirmed, in part, reversed, in part, the granting of a 5% permanent partial disability award is vacated, and the matter is remanded with directions to reinstate the OOJ's June 18, 1998, which granted no award for occupational pneumoconiosis disability. That portion of the May 30, 2006, order of the BOR, which affirmed the September 4, 2003, interlocutory order of the OOJ on the nonmedical issue, is affirmed.
The claimant, a glass plant worker for 32 years, filed this claim seeking benefits for occupational pneumoconiosis2 on November 4, 1997. Claimant worked at the Fenton Art Glass Company in Williamstown, West Virginia, for approximately one year between 1959 and 1960, and then again beginning in August 19, 1968. He continued working after filing this claim. In support of his application, claimant submitted the September 2, 1997, report of Maurice Bassali, M.D. (hereinafter "Dr. Bassali"), in which Dr. Bassali diagnosed claimant with occupational pneumoconiosis based upon his review of an x-ray dated July 29, 1997, from Parkersburg Radiology Services. Specifically, Dr. Bassali read claimant's x-ray film as showing diffuse chronic interstitial lung disease suggestive of occupational pneumoconiosis type q/t, profusion 1/1, affecting all six lung zones. Dr. Bassali further identified a right wall pleural plaque, width B, extent 3; and a left wall pleural plaque, width B, extent 1. Dr. Bassali classified his x-ray as being of good diagnostic quality # 1.
By order of February 18, 1998, the Commission held the claim compensable on a nonmedical basis, subject to the presumption of West Virginia Code § 23-4-8c(b),3 and claimant was referred to the Occupational Pneumoconiosis Board for a medical evaluation. The employer protested this interlocutory non-medical order.
In support of his claim on the non-medical exposure issue, claimant testified that he was exposed to dust in the form of sand, soda ash, and other materials used in batch to make glass. He did not wear breathing protection. Asbestos was removed from the plant in the 1980's as part of an asbestos abatement program which concluded in November 1989. Although asbestos was no longer used in the plant, claimant testified that he had been exposed to asbestos dust at the plant earlier in his working career. Claimant testified that he continued working at the plant after he filed the instant claim.
The employer introduced two reports by Terrence Stobbe, Ph.D., CIH (hereinafter "Dr. Stobbe") Dr. Stobbe conducted surveys of the plant on November 23, 1998, and November 24, 1998, and again on two days in August 1999. Dr. Stobbe found that respirable dust levels, including silica, were well below any government or industrial hygiene standard in all areas of the plant. Dr. Stobbe concluded that there was no dust hazard at the plant. Dr. Stobbe also found no asbestos fibers present in the plant in either of his surveys. Dr. Stobbe admitted that his testing would not be relevant to the condition of the plant regarding the presence of asbestos at some time in the past, but might be relevant to the condition of respirable dust at some earlier period.
The employer introduced an affidavit from Michael D. Fenton, (hereinafter "Mr. Fenton") director of safety and environmental health for the employer since 1985. He began his employment at the plant in 1972. He stated that asbestos removal from the plant began in the 1980's and was completed by November 1989. He stated that since 1977, there had been no changes in operations, production procedures, or the use of equipment, which increased the employees' risk of exposure to a dust hazard.
The employer also introduced a report of Donald J. McGraw, M.D., MPH (hereinafter "Dr. McGraw"). Dr. McGraw conducted a walk-through tour of all departments in the plant and reviewed dust surveys and Dr. Stobbe's conclusions. He concluded that there was no respirable dust hazard or other risk of occupational respiratory disease at the employer's plant. Dr. McGraw testified that he believed his conclusions were valid for conditions at earlier periods at the plant and that the testimony of employees about observing dust at the plant was not credible.
At a hearing held on May 21, 2003, the Occupational Pneumoconiosis Board (hereinafter "O.P. Board") found that the conclusions of Dr. McGraw and Dr. Stobbe regarding the condition of the plant prior to the time Dr. Stobbe conducted his surveys in the late-1990's to be unreliable in part on the grounds that no specific data had been introduced into the record to determine the accuracy of the reports. The O.P. Board also found that asbestos was present in the plant at least up to November 1989. Therefore, the O.P. Board concluded that claimant was exposed to the hazards of abnormal quantities of dust, as well as asbestos, in the course of and arising out of his employment at the employer's plant.
By order of September 4, 2003, the OOJ affirmed the Commission's interlocutory non-medical order of February 16, 1998. In that order, Deputy Chief Administrative Law Judge Henry Haslebacher (hereinafter "Judge Haslebacher") thoroughly reviewed the evidence of record on the non-medical exposure issue. Noting that despite putting a considerable amount of evidence into the record regarding the absence of a respirable dust hazard at the plant, the evidence was not conclusive as to all of the time during which claimant worked at the employer's plant. Because he found no verification for the conclusions offered by the employer's witnesses as to claimant's dust exposure, Judge Haslebacher found the conclusions of Dr. McGraw, Dr. Stobbe and Mr. Fenton to be unreliable. Judge Haslebacher cited the conclusions of the O.P. Board in this regard. Specifically, Judge Haslebacher found no actual industrial hygiene studies to document dust levels in the plant prior to 1998, when Dr. Stobbe performed the first of his two surveys. When combined with the testimony of claimant, the OOJ found a sufficient basis to affirm the Commission's February 16, 1998,...
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