The West Virginia Supreme Court of Appeals rejected a claim filed by the Greenbrier County Board of Education that, if upheld, would have denied a former custodian workers’ compensation.
“The issues on appeal are compensability and permanent partial disability for occupational pneumoconiosis,” according to a memorandum decision dated Sept. 22.
“By Order dated April 4, 2017, the claims administrator rejected the claim. On March 1, 2018, the Workers’ Compensation Office of Judges (“Office of Judges”) reversed the claims administrator’s rejection of the claim and held the claim compensable for occupational pneumoconiosis benefits on a non-medical basis. The Office of Judges found that Mr. [Earl E.] Smith is entitled to the presumption set forth in West Virginia Code § 23-4-8c(b). Following the determination of compensability, the claims administrator granted Mr. Smith a 10% permanent partial disability award on July 17, 2018. The Office of Judges affirmed the claims administrator’s grant of a 10% award on August 27, 2019. This appeal arises from the Board of Review’s Order dated February 20, 2020, in which the Board affirmed the Orders of the Office of Judges.”
The Sept. 22 memorandum detailed the case: Mr. Smith, a former janitor with Greenbrier County Schools, filed an application for occupational pneumoconiosis benefits on March 23, 2017, with a last date of exposure of March 10, 2017. He was employed as a janitor since 1985, and he was allegedly exposed to the hazards of occupational pneumoconiosis while working in West Virginia for thirty years. Mr. Smith reported that he was exposed to coal dust, chemicals, floor stripping substances, wax and asbestos. Accompanying his application was a chest x-ray dated July 29, 2016, showing non-specific increased lung markings. The Physician’s Report of Occupational Pneumoconiosis was completed at Rainelle Medical Center’s Black Lung Clinic. The physician stated that the first date of treatment or examination was October 11, 2016, and Mr. Smith had pulmonary function testing on October 11, 2016, where he was diagnosed with occupational pneumoconiosis.
By Order dated April 4, 2017, the claims administrator rejected the claim on the basis that Mr. Smith did not satisfy the exposure requirements of W. Va. Code § 23-4-15(b).2 Mr. Smith protested the claims administrator’s decision.
Mr. Smith testified by deposition on July 12, 2017, that he was employed by the Greenbrier County Board of Education for over thirty years. It had been over three years since he worked full time. When he started in 1985, he worked as a custodian. The majority of the time he worked at Rainelle Elementary. Mr. Smith described his duties that exposed him to dust included buffing floor tiles with a machine and taking care of four fired furnaces. He had to unload coal, shovel coal into the furnaces and then stoke the furnaces. He stated that he had additional exposure to dust and smoke while cleaning ashes from the furnaces. Mr. Smith testified that he believed that the floor tiles at Rainelle Elementary were asbestos, and he reported that the tile flooring in the cafeteria was removed because it was found to be made of asbestos. He testified that he never smoked, and he never had any problems with his lungs in the prior to his occupational pneumoconiosis diagnosis.
The employer submitted evidence regarding the use of coal furnaces at the school where Mr. Smith was employed and argued that Mr. Smith could not present evidence of exposure to dust after 1996 because the four coal powered furnaces were transitioned into an oil based system at that time. It was the petitioner’s opinion that any impairment related to coal dust exposure would have been resolved in the 2001 and 2007 claims.
On March 1, 2018, the Office of Judges reversed the claims administrator’s rejection of the application for occupational pneumoconiosis benefits, and the claim was held compensable on a non-medical basis. The Office of Judges determined that Mr. Smith was exposed to numerous hazards of dust in the course of his employment as a janitor throughout the school system in Greenbrier County. Because it was found that Mr. Smith has sufficient exposure to the hazards of occupational pneumoconiosis in the State of West Virginia to give the claims administrator jurisdiction to consider the claim, the Office of Judges held that he was entitled to the benefits of the presumption of W. Va. § 23-4-8c(b). It was also held that that the claim was timely filed pursuant to W. Va. Code § 23-4-15, with Greenbrier County Board of Education being the sole chargeable employer in the claim.
Subsequently, the claim was referred to the Occupational Pneumoconiosis Board for an evaluation on May 10, 2018. The Occupational Pneumoconiosis Board made a diagnosis of occupational pneumoconiosis and recommended 10% permanent partial disability impairment. On July 17, 2018, the claims administrator granted Mr. Smith a 10% permanent partial disability award. The Office of Judges affirmed the 10% permanent partial disability award in an Order dated August 27, 2019.
Greenbrier County Board of Education appealed both decisions of the Office of Judges and argued that it was clearly wrong to rule Mr. Smith’s claim compensable on a non-medical basis because the evidence establishes that he has not been exposed to hazardous dust since 1996. The petitioner argued that Mr. Smith does not meet the requirements to file a new claim for benefits, and referenced Pennington v. West Virginia Office of the Insurance Commissioner, 241 W. Va. 180, 820 S.E.2d 626 (2018), which requires a claimant to have a diagnosis of impairment due to occupational pneumoconiosis made known to the claimant by a physician. On February 20, 2020, the Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed the Orders dated March 1, 2018, and August 27, 2019.
After review, we agree with the findings and conclusions of the Office of Judges, as affirmed by the Board of Review. Although the Greenbrier County Board of Education argues that he does not meet the requirements to file a new claim pursuant to Pennington, the Office of Judges determined that the record suggests that Mr. Smith was exposed to numerous hazards of dust in the course of his employment as a janitor, including asbestos, coal dust and numerous other dust particles while working throughout the school system. The Occupational Pneumoconiosis Board found that Mr. Smith has impairment from occupational pneumoconiosis on May 10, 2018. Therefore, the decision of the Board of Review is affirmed.
Chief Justice Evan H. Jenkins, Justice Elizabeth D. Walker, Justice Tim Armstead, Justice John A. Hutchison and Justice William R. Wooton concurred in the memorandum decision.
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