Kyla Asbury Nov. 1, 2012, 8:17am
WHEELING – The West Virginia Supreme Court of Appeals has upheld an order by the state’s Workers’ Compensation board finding Severstal steel worker Ernest Gambellin’s claim for bladder cancer compensable as an occupational disease.
Gambellin was represented in his appeal by Bordas & Bordas attorney Zak Zatezalo pro bono.
“The claimants with occupational diseases face a much tougher climb, because the workplace connection to the injury is not as immediately apparent as it is in cases involving burns or broken bones,” Zatezalo said.
Gambellin filed an injury report alleging bladder cancer as an occupational disease on April 25, 2008. His employer denied the claim for a “lack of causal relationship” between the disease and Gambellin’s employment.
Zatezalo said it is often more difficult for claimants to find an attorney to take on this type of claim in Gambellin’s situation.
“Gambellin found himself in this situation when I first met him.” Zatezalo said. “I was familiar with the operation at his workplace, however, and knew that workers like Ernie are routinely exposed to workplace chemicals and toxins known to cause bladder cancer. After my first meeting with Ernie, I knew he was a stand-up guy who had paid a large price for his dedication to his company, and I felt very compelled to try and help him with his claim.”
Zatezalo appealed the ruling to the Office of Judges who reversed the claims administrator's denial and held Gambellin's claim compensable for bladder cancer as an occupational disease, finding that Gambellin was subjected to dermal and inhalation exposure of coal tar pitch and coal tar in his job, and that certain safety measures were at many times not working.
Gambellin's employer appealed the Office of Judges ruling to the Workers' Compensation Board of Review where the Office of Judges decision was upheld.
Following that ruling, Gambellin's employer again appealed to the West Virginia Supreme Court.
In upholding the Board of Review decision, the Supreme Court took note of an OSHA report that confirmed Gambellin's testimony that the gas blanketing system was often inoperable, and that maintenance and repairs at the plant lacked in several areas.
The Court also pointed out that the Office of Judges found that a toxicologist acknowledged that exposure to coke oven emissions, such as coal tar pitch, crude coal tar and coke oven gas, has been associated with bladder cancer.
“Ernie's case highlights the fact that the daily realities of life in a plant are often times much different than the way things are 'supposed to work’,” Zatezalo said. “In denying and appealing Ernie's claim, Severstal Wheeling, Inc. (formerly Wheeling-Pittsburgh Steel Corp.) argued the theoretical manner in which Ernie's workplace was supposed to operate to minimize workplace exposure to harmful toxins. But evidence from OSHA, Ernie and other witnesses proved the realities of the unavoidable exposure to harmful toxins that workers like Ernie often face on a constant basis from equipment breakdowns, pressure to produce and the very nature of the chemical manufacturing process itself.”
Jim Bordas, founding partner of Bordas & Bordas said he was pleased that Zatezalo was able to represent Gambellin in his efforts to secure compensation that he rightly deserved for injuries he received at his workplace.
“This case is another example of our firm's commitment to continue to provide pro bono services above and beyond what is requested by Legal Aid,” Bordas said. “Our firm has a long history of doing pro bono work, starting from the time that my wife and I first founded the firm.”
Bordas said the firm offers free legal advice daily and that they take many deserving cases on a pro bono basis when injured people would not otherwise be afforded legal representation.
“We at this firm are all very proud of Zak's efforts in this case, and we applaud the West Virginia Supreme Court for recognizing the decisions of the Office of Judges and Workers' Compensation Board of Review as being appropriate,” Bordas said.
Bordas & Bordas is believed to be the only plaintiffs' firm in West Virginia recognized for its efforts by being awarded the prestigious Pro Bono Firm of the Year award.