eNotes: Workers’ Compensation – October 2023 – West Virginia

SIGNIFICANT CASE SUMMARIES

West Virginia Case Summary

Lewis v. Columbia W. Va. Corp.
West Virginia Intermediate Court of Appeals
2023 W. Va. App. LEXIS 213, 2023 WL 5695908

The Workers’ Compensation Board of Review did not err when it rejected the petitioner’s occupational pneumoconiosis claim because the petitioner failed to demonstrate that he had been exposed to abnormal quantities of dust during his employment as required by W. Va. Code § 23-4-1(b).

Background

The petitioner-employee in this case appealed an order of the Workers’ Compensation Board of Review (Board) issued on April 24, 2023. The respondent-employer rejected the petitioner-employee’s workers’ compensation claim on a non-medical basis. The petitioner-employee had been employed from 1992 to 2019, primarily working as a dryer tender. He filed a claim for occupational pneumoconiosis (OP) in August 2021. The claim was based on his alleged exposure to dust and other hazards during his employment with the respondent-employer.

Dr. Daniel Doyle interpreted a pulmonary function test and an x-ray study conducted in August 2021 but found no conclusive evidence of OP. The petitioner-employee testified about his work duties, including occasional exposure to dust, and his use of dust masks while working. Additionally, the plant manager for the respondent-employer testified that dust masks were made available to employees, but were not required because the dust levels in the plant were “nowhere near” the thresholds that would require masks to be worn. He further testified that he would not consider the petitioner-employee’s position a “dusty position” because dust was not generated or visible in his workspace. Further, there was no cutting or abrasion of the wood that would produce dust.

Holding

The central issue in this case was whether the petitioner-employee had the requisite exposure to the hazards of OP as required by West Virginia law. West Virginia Code § 23-4-1(b) mandates that compensation for occupational pneumoconiosis is only payable if an employee has been exposed to hazards in the state over a specific period. The Board concluded that the petitioner-employee failed to establish that he had been exposed to abnormal quantities of dust, a requirement under the law. They also found that the plant manager’s testimony did not support the existence of abnormal dust levels in the dryer area. As such, the court affirmed the Board’s decision, emphasizing the deference to the Board’s findings and credibility determinations. They held that the petitioner-employee did not meet the statutory exposure requirements and that the Board’s decision was not clearly wrong. Therefore, the Board’s April 24, 2023, order rejecting the petitioner-employee’s claim was upheld.

Take Away

An employee will not be entitled to compensation for occupational pneumoconiosis unless he/she was exposed to abnormal qualities of dust.

Questions about this case can be directed to Evan Jenkins at (412) 697-7403 or ejenkins@tthlaw.com.