WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court overruled the West Virginia Workers' Compensation Board of Review on Dec. 13 in a case involving occupational pneumoconiosis.

Jeffrey Murray alleges that he suffers from occupational pneumoconiosis due to his exposure to dust during his employment with Alcan Rolled Products.

Alcan’s “Mr. Merrifield," an industrial hygienist for the company, acknowledged the presence of “asbestos, refractory ceramic fibers, and fiberglass” that had the potential of becoming airborne at the plant during Murray’s employment, but asserted they were not at such a level to be harmful to Murray after Feb. 13, 1994.

The Workers’ Compensation Board of Judges found that the data used to back up Merrifield’s assertions did not fully meet the criteria demanded by the applicable state statute.

The Board of Judges found that “there was no sampling data covering the area where Mr. Murray worked when he was employed in the finishing department from February 14, 1994, to March 7, 1994, or when he was employed in the plate department from November 21, 2002, to January 19, 2003.”

They also found a “lack of consistency in the time period between sampling conducted in each department” and that these failures triggered a statutory presumption that Murray’s respiratory issues were due to occupational hazards at Alcan.

The Board of Review then overruled the Board of Judges, asserting that Alcan was in compliance with OSHA’s dust limits during the times in question and Murray was therefore not entitled to the statutory presumption that his illness was caused by his employment hazards.

The Supreme Court found fault with both the Board of Judges and the Board of Review.

“Both the Office of Judges and the Board of Review were incorrect in their analysis under West Virginia Code of State Rules... as only portions of the data submitted by Alcan Rolled Products are not credible pursuant to the Rule," the court wrote.

The court found that the Board of Judges had not made the correct determination on the periods of time that Alcan could have been exposed and that although the Board of Review was correct in its determination that Murray was not entitled to “the presumption,” its analysis was still faulty due to the misapplication of the statutory rules.

"(T)he Board of Review is correct in its determination that Mr. Murray is not entitled to the presumption contained in West Virginia Code § 23-4-8c (b), because he has not been exposed to the hazards of occupational pneumoconiosis for ten of the last fifteen years preceding his date of last exposure, which is July 15, 2008," the court wrote.

"Therefore, in addition to the exposure to occupational dust hazards before February 14, 1994, as determined by the claims administrator, pursuant to West Virginia Code of State Rules § 85-20-52.2 Mr. Murray was exposed to the hazards of occupational pneumoconiosis from February 14, 1994, to March 7, 1994, and from November 21, 2002, to January 19, 2003."

The court reversed the Board of Review’s order and remanded the case back to the board for proceedings consistent with its opinion.