Jurisdiction: Intermediate Court of Appeals West Virginia
Plaintiff’s widow filed a Workers’ Compensation claim stating that occupational asbestos exposure was a contributing factor to plaintiff’s mesothelioma diagnosis and eventual death from mesothelioma.
The claim administrator denied the claim in an order dated July 20, 2021. The denial was based on failure to state a specific date of last exposure and failure to include the necessary exposure information.
Plaintiff’s widow contested the order to the board, who affirmed the claim administrator’s decision. This appeal was then brought, and the decision was remanded to the board. The record at the board had been reopened, and extensive evidence was submitted including plaintiff’s testimony about his work and exposure.
After the additional evidence was received, the board reviewed the claim under the standard of review set forth in West Virigina Code 23-5-12a(b). The board found that plaintiff was exposed to asbestos, and per his doctor’s unrefuted opinion that there was no safe level of exposure, his claim of exposure was sufficient.
On remand, the board reviewed the claim as an occupational disease and found the claim was established under those guidelines. Therefore, plaintiff’s widow was granted dependent benefits. This decision was affirmed by the court.