West Virginia Record

Wednesday, October 23, 2019

Black lung injury not compensable because company was OSHA-compliant

By T.K. Kim | Oct 15, 2013

CHARLESTON - A furnace operator seeking a Workers’ Compensation claim against his employer for allegedly suffering exposure to occupational pneumoconiosis was properly denied because the company was compliant with OSHA standards, the state Supreme Court has held.

Randy Torris originally filed a claim alleging he suffered exposure to the hazards of occupational pneumoconiosis, also known as “black lung,” while working as a furnace operator for Alcan Rolled Products-Ravenswood, LLC.

In 2009, an administrator rejected Torris’ claim. Torris then appealed the ruling to the state Workers’ Compensation Board of Review, which affirmed the administrator’s decision in a 2011 ruling saying Torris did not meet the exposure requirement for a valid pneumoconiosis claim.

Torris again appealed, asserting that there was sufficient evidence to prove he was exposed to the hazards of occupational pneumoconiosis for the entire time he worked for the company.

In its defense, Torris’ employer argued it performed regular industrial hygiene testing while Torris was with the company and also met OSHA regulations to limit employee exposure to excessive or harmful quantities of dust.

The state Supreme Court, in a unanimous decision released Oct. 4, upheld the board’s ruling citing state rule §85-20-52.2 (2006).

The rule states that if “an employer submits credible evidence demonstrating that is has been in compliance with OSHA and/or MSHA permissible exposure levels, as determined by sampling and testing performed in compliance with OSHA and or MSHA regulations, the claims administrator may consider that the dust exposure alleged by the injured employee does not suffice to satisfy the exposure requirements” of the state code for periods “covered by the sampling or testing.”

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