Zackery v. SWCC

• Decision Date: 10 April 1979
• Docket Number: Nos. 14287,14282,s. 14287
• Court: West Virginia Supreme Court
• Parties: Pete ZACKERY v. SWCC and Frank Sovastion et al. Paul P. SHUFF v. SWCC, and Cedar Coal Co., et al.

Page 532

253 S.E.2d 532

162 W.Va. 932

Pete ZACKERY v. SWCC and Frank Sovastion et al.

Paul P. SHUFF v. SWCC, and Cedar Coal Co., et al.

Nos. 14287, 14282.

Supreme Court of Appeals of West Virginia.

April 10, 1979.

Syllabus by the Court

W.Va.Code, 23-4-8c(b) contains no requirement that a claimant must have been exposed to hazards of occupational pneumoconiosis "for a period of ten years during the fifteen years immediately preceding the date of his last exposure" solely Within the State of West Virginia in order to benefit from the medical presumption therein.

Allan N. Karlin, Morgantown, for appellants.

No appearance for appellees SWCC and Sovastion, et al., 14287.

K. Paul Davis, Davis & Nesius, South Charleston, for appellees SWCC and Cedar Coal Co., et al.

HARSHBARGER, Justice:

These are appeals from orders of the Workmen's Compensation Appeal Board denying appellants, Paul P. Shuff and Pete Zackery, the presumption in W.Va.Code, 23-4-8c(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.

Mr. Shuff was determined to be eligible for benefits by the Workmen's Compensation Commissioner. Cedar Coal Company appealed the ruling and the Appeal Board reversed the order insofar as it determined that claimant had been exposed to the hazards of occupational pneumoconiosis in West Virginia for a period of ten years during the fifteen years immediately preceding the date of last exposure.

Mr. Zackery's claim for benefits was denied by the commissioner, and the order was upheld by the Appeal Board. The Board held that the claimant was not exposed to the hazards In West Virginia for ten of the fifteen years immediately preceding his last exposure.

It read into Code, 23-4-8c(b) the language of 23-4-15b:

If a claim for occupational pneumoconiosis benefits be filed by an employee within three years from and after the last day of the last continuous period of sixty days exposure to the hazards of occupational pneumoconiosis, the commissioner shall determine whether the claimant was exposed to the hazards of occupational pneumoconiosis for a continuous period of not less than sixty days while in the employ of the employer within three years prior to the filing of his claim, whether In the State of West Virginia the claimant was exposed to such hazard over a continuous period of not less than two years during the ten years immediately preceding the date of his last exposure thereto and whether the claimant was exposed to such hazard over a period of not less than ten years during the fifteen years immediately preceding the date of his last exposure thereto. If a claim for occupational pneumoconiosis benefits be filed by an employee within three years from and after the employee's occupational pneumoconiosis was made known to him by a physician or otherwise should have reasonably been known to him,...