CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, Employer Below, Petitioner
DELORES M. AMBRO, WIDOW OF CARL AMBRO, Claimant Below, Respondent
Appeal No. 2051911) (Claim No. 2013007531)
Constellium Rolled Products Ravenswood, by James W. Heslep,
its attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review.
issue on appeal is dependent's benefits. By Order entered
December 20, 2013, the Office of Judges held that Constellium
Rolled Products is the sole chargeable employer. The claims
administrator granted Mrs. Ambro's application for
dependent's benefits on March 6, 2014. The Office of
Judges affirmed the decision in its March 16, 2017, Order.
The Orders were affirmed by the Board of Review on July 27,
2017. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the
case is mature for consideration.
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
Ambro, a plant worker, was diagnosed with lung cancer in
2002. A May 8, 2002, treatment note by Ohio State Medical
Center indicates Mr. Ambro had a mass in his left lung. The
mass was determined to be a mucinous adenocarcinoma and had
spread to some local lymphnodes. He underwent a left upper
lobe lobectomy for Stage II adenocarcinoma in December of
2002. In an April 17, 2003, letter, Patrick Ross, M.D.,
stated that Mr. Ambro continued to have significant
difficulty breathing. T. Samaha, M.D., noted on August 1,
2005, that Mr. Ambro presented with an abnormal chest x-ray
followed by an abnormal PET scan. He had a relapse of his
April 10, 2007, treatment note, Bahalial Gondalia, M.D.,
noted that Mr. Ambro was referred for shortness of breath for
five years. Pulmonary testing showed mild obstructive lung
defect and moderate restrictive lung defect due to a left
upper lobectomy. He likely had bronchial asthma. On May 16,
2007, Nik Shah, M.D., noted that Mr. Ambro showed no signs of
recurrence of his lung carcinoma. However, in September of
2007, blood work showed that his lung carcinoma had returned.
In May of 2010, Dr. Shah noted that a chest x-ray was normal
with no evidence of recurrence.
Ambro underwent surgery to remove a bladder tumor on
September 15, 2010. In a treatment note five days later, Dr.
Shah stated that he presented with multiple high grade
bladder carcinoma. He was not a candidate for surgery and Mr.
Ambro's family was unsure if treatment was wanted.
Stanley Pamfilis, M.D., stated in a treatment note in
November of 2010 that Mr. Ambro had recurrent cancer. In
December of 2010, Sivamurth Kyathari, M.D., noted that there
was no evidence of recurrence of the cancer in the lung. In a
letter dated May 24, 2011, B. Asher Louden, M.D., noted that
Mr. Ambro had a probable basal cell on his back and a
possible squamous cell on his chest. Given his other advanced
cancers and the fact that he was receiving hospice care, no
treatment was recommended.
Ambro passed away on June 21, 2011. Mrs. Ambro filed an
application for dependent's benefits on April 26, 2012.
Attached were documents showing that a claim had been held
compensable for lung cancer and Mr. Ambro received a 65%
permanent partial disability award for it on January 16,
2003. Also attached was the death certificate which listed
the cause of death as carcinoma of the lung.
December 20, 2013, the Office of Judges held that Constellium
Rolled Products was the sole chargeable employer. It was
determined that when Mr. Ambro began working at the plant it
was called Kaiser. Kaiser sold the plant to Ravenswood in
1989. In that purchase agreement, Kaiser agreed to retain
responsibility for all claims incurred by eighty-three
identified employees labeled Schedule I. Ravenswood assumed
all remaining responsibility for workers' compensation
claims. Ravenswood was renamed Century Aluminum in 1997 and
then sold to Pechiney S.A. France in 1999. The name of the
plant was then changed to Constellium Rolled Products.
Pechiney assumed all workers' compensation liability at
the time of purchase. There was no evidence submitted showing
Mr. Amrbro was on the list of workers still covered by
Kaiser; therefore, the Office of Judges determined that
Kaiser was not a chargeable employer. Constellium Rolled
Products was determined to be the sole chargeable employer.
Occupational Pneumoconiosis Board found on January 14, 2014,
that Mr. Ambro suffered from an occupation disease of the
lungs that was a material contributing factor in his death.
It noted that he did not have evidence consistent with
occupational pneumoconiosis but did have a history of lung
cancer. The claims administrator granted Mrs. Ambro
dependent's benefits on March 6, 2014.
Fino, M.D., performed a record review on July 22, 2015, in
which he opined that Mr. Ambro had neither occupational
pneumoconiosis nor asbestosis. He agreed that he had lung
cancer. Dr. Fino concluded that Mr. Ambro died due to lung
cancer that had nothing to do with the inhalation of
asbestos. Michael Warhol, M.D., performed a record review on
March 7, 2017, in which he found no evidence of asbestosis.
He opined that Mr. Ambro's lung cancer was not asbestos
related. He noted that Mr. Ambro smoked for nineteen years
and worked as a coal miner for fifteen. Dr. Warhol found the
smoking history to be insufficient to cause lung cancer and
stated that the type of lung cancer is most often seen in
non-smokers. He concluded the lung cancer was idiopathic but
that asbestos did not contribute to it.
Occupational Pneumoconiosis Board testified in a hearing
before the Office of Judges on February 15, 2017. It found
that at the time of death, Mr. Ambro's lung cancer had
reoccurred. Lung cancer was determined to be a material
contributing factor in his death.
Office of Judges affirmed the claims administrator's
decision granting dependent's benefits on March 16, 2017.
It found that lung cancer was held a compensable condition in
the claim and Mr. Ambro was granted a 65% permanent partial
disability award for the condition. After review of all of
the evidence of record, the Occupational Pneumoconiosis Board
determined that lung cancer was present and had reoccurred at
the time of Mr. Ambro's death. It was determined to be a
material contributing factor in his death. The Office of
Judges determined that Mrs. Amrbo was granted dependent's
benefits based on the Occupational Pneumoconiosis Board's
findings. Its findings were found by the Office of Judges to
be supported by the evidence of record. The Board of Review
adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Orders on July 27, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. First,
when it bought the plant at which Mr. Ambro worked, Pechiney
changed the name to Constellium Rolled Products and assumed
liability for all workers' compensation claims apart from
eighty-three named individuals of which Mr. Ambro was not
one. It is therefore the chargeable employer in this case.
Second, the claim was held compensable for lung cancer. It
was determined by the Occupational Pneumoconiosis ...