Harrison v. Workers' Compensation Com'r
| Decision Date | 07 July 1989 |
| Docket Number | No. 18790,18790 |
| Court | West Virginia Supreme Court |
| Parties | Betty HARRISON v. WORKERS' COMPENSATION COMMISSIONER and Elco Plumbing & Heating Company. |
Syllabus by the Court
"An order of the Workmen's Compensation Appeal Board, affirming an order of the Director of Workmen's Compensation, which is clearly wrong, will be reversed by this Court with directions to enter a proper order consistent with the evidence." Syllabus, McGeary v. State Compensation Director, 148 W.Va. 436, 135 S.E.2d 345 (1964).
Michael R. Crane, Forman, Kanner & Crane, Charleston, for Betty Harrison.
Jackson & Kelly, Charleston, for Workers' Compensation Commissioner et al.
This case is before the Court upon the appeal of Betty Harrison, widow of William A. Harrison, from the July 29, 1988 Workers' Compensation Appeal Board's affirmance of the Commissioner's July 21, 1987 Commissioner's order which denied the claimant dependent's benefits because the claimant had failed to establish that the decedent was exposed to asbestos for the requisite periods. Since the Commissioner had previously ruled on three separate occasions that the claimant had established the exposure requirements for eligibility under W.Va.Code, 23-4-1 [1976] and the exposure requirements for the medical presumption under W.Va.Code, 23-4-8c(b) [1988], and without specific findings to the contrary, arbitrarily reversed himself, the Appeal Board's affirmance of the decision is reversed.
This claim deals with the interplay of Code, 23-4-1 [1976] and Code, 23-4-15b [1988], 1 regarding the proceedings before the Commissioner in occupational pneumoconiosis (OP) claims.
The procedure for obtaining OP benefits begins with Code, 23-4-15 [1986], the filing of the application for benefits. If a timely application for benefits has been filed pursuant to Code, 23-4-15, the Commissioner must make three additional non-medical determinations prior to sending the claim for a medical evaluation by the OP Board. 2 Two of these determinations concern the claimant. One of these determinations concerns the employer.
The first finding regards the claimant's eligibility to file the claim. W.Va.Code, 23-4-1 [1976] contains the eligibility requirement for OP:
[C]ompensation shall not be payable ... unless the employee has been exposed to the hazards of occupational pneumoconiosis in the State of West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure to such hazards, or for any five of the fifteen years immediately preceding the date of such last exposure.
See syl. pt. 1, Buchanan v. SWCC, --- W.Va. ----, 318 S.E.2d 460 (1984).
If a claimant is initially eligible to file for benefits the Commissioner must then make a second finding concerning the claimant: whether the claimant is entitled to a rebuttable medical presumption that OP substantially contributed to the disability or death of the covered employee.
W.Va.Code, 23-4-8c(b) [1988] reads:
(b) If it can be shown that the claimant or deceased employee has been exposed to the hazard of inhaling minute particles of dust in the course of and resulting from his employment for a period of ten years during the fifteen years immediately preceding the date of his last exposure to such hazard and that such claimant or deceased employee has sustained a chronic respiratory disability, then it shall be presumed that such claimant is suffering or such deceased employee was suffering at the time of his death from occupational pneumoconiosis which arose out of and in the course of his employment. This presumption shall not be conclusive.
The third finding concerns the employer. W.Va.Code, 23-4-1 limits the liability of employers who may be charged for such awards:
An application for benefits on account of occupational pneumoconiosis shall set forth the name of the employer or employers and the time worked for each, and the commissioner may allocate to and divide any charges resulting from such claim among the employers by whom the claimant was employed for as much as sixty days during the period of three years immediately preceding the date of last exposure to the hazards of occupational pneumoconiosis. The allocation shall be based upon the time and degree of exposure with each employer.
See syl. pt. 2, Richardson v. SWCC, 137 W.Va. 819, 74 S.E.2d 258 (1953), reading Code, 23-4-1 and Code, 23-4-15b in pari materia and requiring that the exposure be continuous during the 60-day period.
As noted in syllabus point 2 of Buchanan, supra, W.Va.Code, 23-4-15b encapsulates these required findings by the Commissioner prior to sending a claim to the OP Board for their medical opinion.
This claim was initially filed by a plumber, William Harrison (deceased), in 1976 while he was still working for his last employer, Elco Plumbing & Heating Company (Elco), a West Virginia firm.
Based upon employment information contained on the application, the Commissioner entered an order on August 16, 1977, finding Mr. Harrison timely filed his application for benefits under Code, 23-4-15 and was adequately exposed to asbestos so as to render him eligible for benefits pursuant to Code, 23-4-1 and entitle him to the medical presumption of 23-4-8c(b). The Commissioner further found Mr. Harrison's last two West Virginia employers, Elco Plumbing & Heating Company (Elco) and Cimco, the chargeable employers. 3 From 1977 until 1980 four hearings were conducted on the nonmedical rulings, during which time the employers and the Harrisons produced evidence of Mr. Harrison's employment history and employment environments.
Mr. Harrison was born in 1920. From 1937 until 1977 he worked as a plumber for 40 different firms in ten different states. Although the claim was initially filed in 1976, Mr. Harrison continued to work at Elco until some unspecified date in early 1977. Therefore, the parties treat 1977 as his date of last exposure. For purposes of determining eligibility to file a claim under Code, 23-4-1, and entitlement to the medical presumption under 23-4-8c(b), we also will assume that 1977 is the accurate date and only review his work history from 1962.
The following chart summarizes Mr. Harrison's employment history for his last fifteen years of employment as a plumber. 4
Based on this employment history, Mr. Harrison worked roughly 12.25 years for West Virginia firms from the 15 years of his assumed date of last exposure in 1977, with Elco. Mr. Harrison testified that when he worked for West Virginia Heating & Plumbing (roughly 4.75 years) and when he worked for Elco (roughly 3 years), he would be sent on repair jobs of old plumbing. For instance, at Elco, he worked on eight to ten different repair jobs a day. While he could not remember every site that required him to work around asbestos, he testified that he was required to saw off old insulation, crawl underneath building structures, or within the eves of buildings, and work with or near insulated boilers. He testified that he knew the appearance of asbestos, which was easily identified once struck with a hammer and he worked around asbestos or asbestos dust.
However, the claimant testified that his work at Cimco, from 1972 through 1974, involved new construction.
In defense of the claim, Cimco confirmed that the insulation used on the new construction projects was made of fiberglass. Therefore, since the claimant was not exposed to asbestos while working for Cimco, it was not a chargeable employer under Code, 23-4-1.
Elco also attempted to refute chargeability. Mr. Harrison testified that his work at Elco consisted solely of repair work of old plumbing. The president of Elco testified that in 1980 he went to four locations that Mr. Harrison had previously testified required him, in 1974, to work around or remove asbestos insulation. At one location, the employer still found asbestos insulation in 1980. At the other locations the employer did not "feel" the insulation contained asbestos.
Although Mr. Harrison testified that his work at West Virginia Heating & Plumbing, where he was employed for roughly four years throughout the 1960's, consisted of both repair work and new construction work and that he was also exposed to asbestos during these periods. Counsel for the employers, Cimco and Elco, did not cross-examine the claimant on these matters. 5
The Commissioner entered the second non-medical order dated October 8, 1980. Again, consistent with the August 16, 1977 order, the Commissioner found that Mr. Harrison met the eligibility exposure requirements of Code, 23-4-1 and the medical presumption exposure requirements of Code, 23-4-8c(b). However, in regard to the employer, the Commissioner found that West Virginia Heating & Plumbing (rather than Elco or Cimco) was the chargeable employer under Code, 23-4-1. Both parties appealed and Mr. Harrison died, at age 61, on February 1, 1981, while the claim was pending before the Appeal Board. The Appeal Board subsequently concluded that the record was insufficiently developed "on the questions of exposure and chargeability." Therefore, it remanded the claim and ordered it refiled as a dependent's benefits claim.
Without any additional evidence whatsoever concerning exposure or chargeability by either party, the Commissioner issued the second nonmedical order, now in the form of a dependent's claim, dated April 6, 1982.
For the third time, the Commissioner found that the claimant had met the initial exposure requirements for eligibility under Code, 23-4-1 and had met the requirements for the medical presumption contained in Code, 23-4-8c(b). However, as among West Virginia Heating & Plumbing, Cimco, and Elco, the Commissioner found Elco, the last employer, as the only chargeable employer under Code, 23-4-1. 6
Elco protested and additional evidence was taken. Claimant submitted the autopsy report...
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