Appeal No. 2051211) (Claim No. 2013006289)
Arnold Marcum, by Edwin H. Pancake, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Constellium Rolled Products Ravenswood, by James
W. Heslep, its attorney, filed a timely response.
issue on appeal is the proper date of last exposure in the
claim brought by Mr. Marcum. This appeal originated from the
January 3, 2013, claims administrator's decision holding
the claim compensable for occupational pneumoconiosis and
fixing the date of last exposure as October 30, 1990.
Constellium Rolled Products appealed the decision and the
Office of Judges issued an Order on November 13, 2014, which
modified the date of last exposure to June 24, 2014. This
Order was made final by the Office of Judges' Order dated
March 21, 2016, reversing the claim's administrator's
order dated July 12, 2013, and granting a 25% permanent
partial disability award in the claim. Constellium Rolled
Products appealed this final Order, also. The Board of Review
considered both Orders from the Office of Judges in a
consolidated opinion and adopted the reasoning and
conclusions of the Office of Judges with the exception of
those regarding the date of last exposure. On appeal, the
sole issue is the appropriate date of last exposure.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Marcum, a maintenance foreman, filed an application for
workers' compensation benefits alleging that he developed
occupational pneumoconiosis as a result of exposure to
occupational dust hazards in the course of his employment
with Constellium Rolled Products. Mr. Marcum was employed by
Constellium Rolled Products from 1966 until his retirement on
June 24, 1998. On January 3, 2014, the claims administrator
held Mr. Marcum's claim compensable for occupational
pneumoconiosis and fixed Mr. Marcum's date of last
exposure to the hazards of occupational pneumoconiosis as
October 30, 1990.
October 8, 2013, Mr. Marcum testified in a deposition that
while employed as a maintenance foreman with Constellium
Rolled Products, he was exposed to significant occupational
dust hazards on a daily basis. Mr. Marcum testified that he
only performed work on the fabrication side of the plant.
Specific examples of his exposure to the hazards of
occupational pneumoconiosis included fixing furnaces and
working in an area with large "soaking pits." Mr.
Marcum stated that they would work on cranes and large fans
would blow air into the soaking pits, stirring up dust all
day long. At the time of his employment, Constellium Rolled
Products did not require its employees to wear safety masks.
However, upon filling in as a relief worker after his
retirement, Mr. Marcum noted that plastic covers had been
placed over the soaking pits to prevent dust from being
stirred up, as well as other improvements.
March 13, 2014, Mike Merrifield, a Certified Industrial
Hygienist employed by Constellium Rolled Products, authored
an affidavit. Mr. Merrifield's affidavit covers the time
period from October 31, 1990, through the date of Mr.
Marcum's retirement, June 24, 1998. Mr. Merrifield noted
that the nature of Mr. Marcum's employment within the
maintenance department required that he perform work in
several different areas of the plant, and he therefore
included an analysis of data obtained from the
"Fabrication West", "Hot Rolling",
"Scalping", "Plate", and maintenance
departments. Mr. Merrifield stated that the Occupational
Safety and Health Administration (hereinafter
"OSHA") performed a comprehensive inspection at
Constellium Rolled Products from June of 1991 through October
of 1991, with OSHA finding no evidence of occupational dust
hazards associated with any of the departments referenced
within the affidavit. He stated that the principal of
representative sampling, which is sanctioned and mandated by
OSHA, was used to extrapolate data for the entire time period
covered by the affidavit. Mr. Merrifield further stated that
the sampling data revealed average concentrations of
hazardous substances so far below recognized exposure limits
for the substances in question that Mr. Marcum was not
exposed to any abnormal, harmful, or hazardous quantities of
dust or any other substance during the time period covered by
the affidavit. Finally, Mr. Merrifield stated that based upon
his investigation of the work environment in the departments
referenced in the affidavit; the results of dust level
sampling; and his own personal observations, experiences, and
training as an industrial hygienist, Mr. Marcum was not
exposed to any abnormal, excessive, or harmful quantities of
dust or any other substance after October 30, 1990.
August 14, 2014, Mr. Merrifield testified in a deposition
that nothing he had covered in his affidavit had changed. Mr.
Merrifield had referenced October 30, 1990, as the date of
last exposure because it was strictly a pattern used in the
course of his employment. It was his opinion that after that
date, there was no exposure to the hazards of dust. Mr.
Merrifield did state that it was an error to say that Mr.
Marcum did not work during the period of the labor strike
that lasted from October 30, 1990 through June 29, 1992. Mr.
Marcum was a salaried employee and continued to work through
the dispute, although Mr. Merrifield was unsure of how often.
With regard to the data attached to his prior affidavit, Mr.
Merrifield noted that there were 191 total fiber samples and
seventy-nine total dust samples. These samples were from the
departments referenced in his affidavit that he believed to
be pertinent to Mr. Marcum's work schedule. Mr.
Merrifield admitted that asbestos fibers were found in 1993,
1994, 1995, and 1996 in the maintenance areas. While Mr.
Marcum would have been exposed to the fibers, Mr. Merrifield
testified that the concentration was well below the limit set
forth by OSHA. No fiber or asbestos samples were taken prior
to September 9, 1993; however, Mr. Merrifield was comfortable
with the accuracy of the samples as being representative of
that time period.
Order modifying the January 3, 2013, claims
administrator's decision, the Office of Judges held that
Mr. Marcum's proper date of last exposure to the hazards
of occupational pneumoconiosis is June 24, 1998. The Board of
Review modified the Order of the Office of Judges and stated
that Mr. Marcum's date of last exposure to the hazards of
occupational pneumoconiosis to June 30, 1991. On appeal, Mr.
Marcum asserts that the evidence of record demonstrates that
he was exposed to the hazards of occupational pneumoconiosis
until his last date of employment prior to his retirement,
June 24, 1998.
sole issue in the instant appeal concerns the identification
of the proper date of Mr. Marcum's last exposure to the
hazards of occupational pneumoconiosis. West Virginia Code of
State Rules § 85-20-52.2 (2006) states:
If the employer submits credible evidence demonstrating that
it 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 for
the dust alleged by the injured worker, then the Commission,
Insurance Commissioner, private carrier or self-insured
employer, whichever is applicable, may consider that the dust
exposure alleged by the injured worker does not suffice to
satisfy the exposure requirements of W.Va. Code
§§23-4-1(b) and 23-4-15(b) only for the period(s)
covered by the sampling or testing. In order for the evidence
to be deemed credible, it must be based upon regularly
scheduled exposure samples from each work area where harmful
exposure has been alleged, which samples will be obtained by
certified industrial hygienists as defined by OSHA and/or
MSHA regulations or government agencies, and the samplings
must be obtained during the period for which the employer is
seeking to avoid changeability.
Office of Judges found that a preponderance of the evidence
supported a date of last exposure as June 24, 1998. At a
minimum, it had been admitted that Mr. Marcum did not cease
work during the labor strike, but continued through its
cessation on June 29, 1992. The Office of Judges noted that
it accepted the principal of representative sampling but
found that very few of the samples submitted by Mr.
Merrifield covered the maintenance department and none
referenced the soaking pits that Mr. Marcum had referred to
in his deposition. Further, the Office of Judges found that
the varied samples submitted did not constitute regularly
scheduled samples as required by West Virginia Code of State
Rules § 85-20-52.2 and thus were deemed not credible.
The Office of Judges concluded that Mr. Marcum did suffer
exposure to abnormal quantities of dust up until the time he
retired on June 24, 1998.
September 1, 2016, the Board of Review issued an Order noting
that it agreed with the analysis and conclusions of the
Office of Judges with the exception of those regarding the
date of last exposure, which the Board of Review found were
clearly wrong in view of the reliable, probative, and
substantial evidence of record. The Board of Review took note
of Mr. Merrifield's conclusion that Mr. Marcum was not
exposed to occupational dust hazards after October 30, 1990.
However, the Board of Review found that Mr. Merrifield's
affidavit did not provide any information regarding Mr.
Marcum's exposure to occupational dust hazards from
October 31, 1990, through June of 1991. The Board of Review
also took note of a similar claim in Vernon Marcum v.
Constellium Rolled Products Ravenswood, No. 15-0143
(W.VA. Supreme Court, November 4, 2015) (memorandum
decision). This Court held that that although Mr. Vernon
Marcum testified that he was exposed to the hazards of
occupational pneumoconiosis until the date of his retirement,
Mr. Merrifield's affidavit established that Mr. Vernon
Marcum was not exposed to the hazards of occupational
pneumoconiosis throughout the entirety of his employment with
Constellium Rolled Products. Regarding the instant claim, the
Board of Review adopted the same reasoning and found that
when considering the evidentiary record and the principal of
representative sampling, Constellium Rolled Products was in
compliance with OSHA permissible exposure levels for
respirable dust hazards from July 1, 1991, pursuant to the
OSHA comprehensive inspection beginning in June of 1991,
until Mr. Marcum's retirement on June 24, 1998. The Board
of Review then concluded that Mr. Marcum's proper date of
last exposure is June 30, 1991.
agree with the reasoning and conclusions set forth by the
Board of Review. Although Mr. Marcum testified that he was
exposed to the hazards of occupational pneumoconiosis until
the date of his retirement, Mr. Merrifield's affidavit
establishes that Mr. Marcum was not exposed to the hazards of
occupational pneumoconiosis throughout the entirety of his
employment with Constellium Rolled Products. Mr.
Merrifield's affidavit establishes that air quality
sampling was performed in compliance with all OSHA
regulations and was conducted using a methodology approved by
the National Institute for ...