Meadows v. Workmen's Compensation Com'r, 13354

• Decision Date: 30 October 1973
• Docket Number: No. 13354,13354
• Citation: 157 W.Va. 140,198 S.E.2d 137
• Parties: Huston Woodrow MEADOWS v. WORKMEN'S COMPENSATION COMMISSIONER and FMC Corporation.
• Court: West Virginia Supreme Court

Page 137

198 S.E.2d 137

157 W.Va. 140

Huston Woodrow MEADOWS v. WORKMEN'S COMPENSATION COMMISSIONER and FMC Corporation.

No. 13354.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1973.

Decided Oct. 30, 1973.

Syllabus by the Court

1. In a claim for occupational 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 demonstrated that there are minute particles of dust in abnormal quantities.

2. Once the Commissioner has made the non-medical finding that there is a dust hazard, a pneumoconiosis claimant must be referred to the Occupational Pneumoconiosis Board to determine the question of causation under Code, 23--4--8c(c)(2), as amended. George G. Burnette, Jr., Charleston, for appellant.

Jackson, Kelly, Holt & O'Farrell, David D. Johnson, Charleston, for appellee.

NEELY, Justice:

This is an appeal from a final order of the Workmen's Compensation Appeal Board, dated January 29, 1973, affirming the Workmen's Compensation Commissioner's ruling of April 26, 1972, which rejected the appellant's claim for benefits. The appellant asserted before the Commissioner and the Appeal Board that he had suffered an aggravation of a pre-existing condition of pneumoconiosis because of an exposure to a dust hazard while employed by the FMC Corporation in its sheet metal department. Under the facts as developed at a hearing, the Appeal Board ruled that 'there was no exposure to the hazard of occupational pneumoconiosis for a continuous period of two years prior to the last exposure or for a continuous period of sixty days or more within three years prior to the filing of his said application.'

The appellant here and claimant below, Huston Woodrow Meadows, is currently fifty-eight years old. He bagan working as an underground coal miner in 1927 when he was approximately thirteen years old and from 1927 until 1959 most of claimant's vocational time was spent underground in such positions as motorman, coal loader, cutting machine operator or general laborer. In 1959 the claimant stopped working in the coal mines and from 1959 until 1963 he worked as a janitor at the Kanawha County Club. On April 3, 1963, the claimant was employed by the FMC Corporation at its South Charleston Ordanance Plant, where the claimant worked, except for brief periods of temporary layoff, until November 14, 1969. While employed by FMC, claimant worked for approximately five months as a helper in the packaging and shipping department until August 1963, when he was classified as a 'Helper, Fabrication, Sheet Metal' and began to work in the sheet metal department where he worked until he left FMC in 1969, except for the period from October 29, 1964 to July 25, 1965. While in the sheet metal department, the claimant performed a variety of tasks, one of which was the 'deburring' of parts.

The 'deburring' operation to which claimant principally attributes the dust hazard, was performed by the use of belt grinders, rotary or disk grinders, and so-called 'peewee' grinders. The 'deburring' operation was necessary to remove rough edges from metal that had been cut by saws or shears. The belt grinder, which was mounted on a stationary board or work bench, used an abrasive belt rotated by an electric motor. The rotary and 'peewee' grinders use a carbide grind stone on a rotating shaft driven by an electric motor or compressed air. The claimant asserts that residue material in the form of a 'ball of dust' was created in the deburring operation, and that the abrasive material on the rotating belt or disk was abraded into the air and became a dust residue to which claimant was exposed.

The employer maintains that the evidence presented at the hearings demonstrates that the claimant was not exposed to a situation which he would be subject to the 'inhalation of minute particles of dust over a period of time due to causes and conditions arising out of and in the course of the employment,' as required by Chapter 23, Article 4, Section 1 of the Code of West Virginia, 1931, as amended.

There was substantial conflict in the evidence concerning the factual issue of the amount of dust in the work area. The claimant testified that there was a large amount of dust in the sheet metal department, and testified that the existence of a vehicle testing area in proximity to the building in which claimant worked caused an additional dust hazard whenever the vehicles were tested on the dirt track. One witness, who was a workmate of the claimant, testified that the witness experienced dust from similar grinding, or 'deburring' operations in the same work area as the claimant. The claimant's basic contention is that the effect of small particles being released into the air through the continuous contact between the metal on which the claimant was working and the abrasive materials used to perform the deburring operation, combined with similar persons in proximity to claimant performing the same operation, created a dust hazard which either caused claimant to contract occupational pneumoconiosis, or caused a perceptible aggravation of a pre-existing pneumoconiosis.

The employer introduced voluminous evidence, both from management personnel in the South Charleston plant and from outside technical experts to the effect that no unusual dust hazard was created in the area of claimant's employment. The employer's witness testified that throughout the history of the deburring operation in the sheet metal department of the South Charleston plant, there were no complaints about...