Newman v. Richardson, No. 20206

• Court: Supreme Court of West Virginia
• Writing for the Court: NEELY
• Citation: 186 W.Va. 66,410 S.E.2d 705
• Parties: Margaret A. NEWMAN, Eloise Sims and Helen Smigill, Petitioners, v. Andrew N. RICHARDSON, Workers' Compensation Commissioner, Respondent.
• Decision Date: 16 October 1991
• Docket Number: No. 20206

Page 705

410 S.E.2d 705 186 W.Va. 66 Margaret A. NEWMAN, Eloise Sims and Helen Smigill, Petitioners,
v.
Andrew N. RICHARDSON, Workers' Compensation Commissioner, Respondent. No. 20206.
Supreme Court of Appeals of
West Virginia. Submitted Sept. 10, 1991.
Decided Oct. 16, 1991.

Page 706

[186 W.Va. 67] Syllabus by the Court

1. "In a proceeding brought by a dependent of a deceased employee under W.Va. Code, 23-4-15 [1973] for benefits arising from an occupational pneumoconiosis claim, once the Commissioner has made the nonmedical finding that the claimant's decedent was exposed to a dust hazard, the question of causation under Code, 23-4-8c [1978] must be referred to the Occupational Pneumoconiosis Board." Syllabus, Parker v. Workers' Compensation Commissioner, 174 W.Va. 181, 324 S.E.2d 142 (1984).

2. When a claim for occupational pneumoconiosis alleging asbestosis or any other disease defined by W.Va. Code, 23-4-1 [1990], as occupational pneumoconiosis is filed, the Commissioner must follow the processing system for occupational pneumoconiosis claims and limit the initial determination to exposure and other non-medical facts as required by W.Va. Code, 23-4-15b [1990]. When a claim for an occupational disease is filed, the Commissioner is to follow the usual processing procedure for personal injury claims and, because an occupational disease is alleged, the Commissioner must apply the six criteria outlined in W.Va. Code, 23-4-1 [1990], to determine if the alleged disease was "incurred in the course of and resulting from employment."

3. Our decision in Powell v. State Workmen's Compensation Commissioner, 166 W.Va. 327, 273 S.E.2d 832 (1980), did not change the statutory definition of occupational pneumoconiosis and did not affect the processing system for an occupational pneumoconiosis claim.

Scott S. Segal, Jeffery V. Mehalic, Hostler and Segal, Charleston, for petitioners.

Mario Palumbo, Atty. Gen., C. Terry Owen, Sr. Asst. Atty. Gen., Charleston, for respondent.

Page 707

[186 W.Va. 68] NEELY, Justice:

Margaret A. Newman, Eloise J. Sims and Helen Smigill are all widows whose applications for dependents' benefits based on occupational pneumoconiosis were rejected by the Workers' Compensation Commissioner because their husbands' deaths were not caused by injuries or conditions received in the course of and resulting from employment. Although all widows filed administrative protests, they also petitioned this Court for a writ of mandamus to compel the Workers' Compensation Commissioner to refer their dependents' claims to the Occupational Pneumoconiosis Board for review. The widows allege that their husbands' deaths resulted from exposure to asbestos dust. The disease of "asbestosis" is included in the definition of "occupational pneumoconiosis" in W.Va.Code 23-4-1 [1989]. We find that the Workers' Compensation Commissioner exceeded his authority in issuing what amounted to medical rulings in these occupational pneumoconiosis claims, and we award the writ as molded.

I

Generally all three claims present the same pattern, which includes: (1) asbestos dust exposure to the decedents and the submission of some exposure information to the Workers' Compensation Fund; (2) decedents' death certificates noting the cause of death as mesothelioma or other forms of cancer; (3) timely applications for dependent's benefits based on occupational pneumoconiosis; and, (4) rejection of the applications by the Commissioner on the grounds that the deaths were "not caused by an injury or occupational disease suffered by the decedent[s] in the course of and resulting from employment." ¹ The Workers' Compensation Commissioner rejected the applications without consulting the Occupational Pneumoconiosis Board or, apparently, any other medical specialist. According to a 19 May 1990 policy memorandum of the Commissioner, claims involving mesothelioma and other cancers arising from occupational exposure to asbestos, are to be treated as "occupational diseases, and not as occupational pneumoconioses" and are not to be referred to the Occupational Pneumoconiosis Board.

W.Va. Code, 23-4-1 [1989], the statute providing coverage for occupational diseases, specifically provides a statutory definition for the term "occupational pneumoconiosis." For an occupational disease other than occupational pneumoconiosis, the statute establishes six criteria for determining when a claimant has an occupational disease. W.Va. Code, 23-4-1 [1989], provides the following definition of occupational pneumoconiosis:

Occupational pneumoconiosis is a disease of the lungs caused by 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. The term "occupational pneumoconiosis" shall include, but shall not be limited to, such diseases as silicosis, anthracosilicosis, coal worker's pneumoconiosis, commonly known as black lung or miner's asthma, silico-tuberculosis (silicosis accompanied by active tuberculosis of the lungs), coal worker's pneumoconiosis accompanied by active tuberculosis of the lungs, asbestosis, siderosis, anthrax and any and all other dust diseases of the lungs and conditions and diseases caused by occupational pneumoconiosis which are not specifically designated herein meeting the definition of occupational pneumoconiosis set forth in the immediately preceding sentence. [Emphasis added].

However, in order to be considered for compensation as a result of occupational pneumoconiosis the employee must have been exposed to the hazard in West Virginia for specific periods. ²

Page 708

[186 W.Va. 69] When a disease is not included under the definition of "occupational pneumoconiosis," the disease, to be considered "occupational," must meet the following criteria outlined in W.Va. Code, 23-4-1 [1989]:

... Except in the case of occupational pneumoconiosis, a disease shall be deemed to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease, (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, (3) that it can be fairly traced to the employment as the proximate cause, (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment, (5) that it is incidental to the character of the business and not independent of the relation of the employer and employee, and (6) that it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

W.Va. Code, 23-4-1 [1989], provides that, "[c]laims for occupational disease ... except for occupational pneumoconiosis, shall be processed in like manner as claims for all other personal injuries." Thus, the Workers' Compensation Commissioner is required to have a separate processing system for occupational pneumoconiosis claims; all other occupational disease claims follow the regular processing system.

The separate processing system for occupational pneumoconiosis claims begins with the...