Koppers Industries, Inc. v. Snoderly ( 2022 )

FILED
January 11, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
KOPPERS INDUSTRIES, INC.,
Employer Below, Petitioner
vs.) No. 20-0588 (BOR Appeal No. 2055231)
(Claim No. 2019003899)
ROGER SNODERLY,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Koppers Industries, Inc., by Counsel Michael S. Faber, appeals the decision of
the West Virginia Workers’ Compensation Board of Review (“Board of Review”). 1
The issue on appeal is compensability. The claims administrator rejected the claim on
August 29, 2018. The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the
decision in its February 7, 2020, Order. The case was remanded by the Board of Review on July
14, 2020, with instructions to issue a new time frame Order to allow for further development of
the evidentiary record.
The Court has carefully reviewed the records, written argument, and appendix contained
in the brief, and the case is mature for consideration. 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 Procedure.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning and conclusions.
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A response was not filed.
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(d) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or the Office of Judges that was entered on the same
issue in the same claim, the decision of the board may be reversed or modified by
the Supreme Court of Appeals only if the decision is in clear violation of
constitutional or statutory provisions, is clearly the result of erroneous conclusions
of law, or is so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the board’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. The court may not conduct a de
novo re-weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Snoderly, a mechanic, alleges that he developed occupational pneumoconiosis in the
course of his employment. An Occupational Lung Disease Evaluation was completed at East Ohio
Regional Hospital on November 30, 2017. Mr. Snoderly reported shortness of breath. He had a
smoking history from 1966 to 1982. Mr. Snoderly had worked for the employer since 1973. He
stated that he worked on a lot of lines containing asbestos, and he often had to remove asbestos
insulation from the pipes. Mr. Snoderly stated that he also worked around asbestos installations on
a daily basis. Mr. Snoderly noted that he suffered a collapsed lung in 1990. Pulmonary function
studies showed no obstruction or restrictions. Mr. Snoderly had a mild decrease in diffusion
capacity. The chest x-ray was read as showing a 1/1 degree of profusion, which is consistent with
pneumoconiosis. The final assessment was 30% impairment. An Itemized Statement of Earnings
from the Social Security Administration indicates Mr. Snoderly worked for the employer from
1989 through 2011. The claims administrator rejected the claim on August 29, 2018.
Mr. Snoderly testified in an October 11, 2018, deposition that he began smoking cigarettes
in the mid-1960s and stopped in 1982. Mr. Snoderly stated that he retired in September of 2011.
At that time, he was working in the storeroom and as an auto mechanic. He was not exposed to
dust while he was in the storeroom, but he spent the majority of his time doing auto work. Mr.
Snoderly testified that he worked for Williamson Shaft as a laborer in 1971 and was exposed to
rock dust. He did not wear a respirator. Mr. Snoderly stated that he worked at Koppers from 1973
to 2011. During that time, he worked as a kiln man, a maintenance worker, and a helper in the steel
area. Mr. Snoderly testified that the majority of his time was spent as a mechanic. He got a
respirator in the early 1990s and used only a dust mask before then. Mr. Snoderly stated that he
worked as a steel helper for about six months before retiring. He was not exposed to dust in that
position. Mr. Snoderly noted that the only respiratory treatment he received prior to filing this
claim was when his lung collapsed years prior. Mr. Snoderly testified that he did not remember
having breathing problems. He was diagnosed with asbestosis after he got dizzy in late 2005 and
sought treatment. He was admitted to the hospital that day and was advised to get his lungs checked
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out because x-rays showed significant damage. Mr. Snoderly was evaluated at East Ohio Regional
Hospital and was diagnosed with 30% lung impairment. Mr. Snoderly stated that he was on no
medication for breathing issues. Mr. Snoderly testified that the only time he recalled being exposed
to asbestos was when he was a maintenance worker and a steel man. Hoses would get plugged up,
and Mr. Snoderly would have to steam the insulation around them. This happened many times and
caused a lot of dust. Mr. Snoderly stated that he sometimes wore a dust mask if it was available,
but he did not wear a respirator while performing this job. At the time, he did not know that the
insulation was made of asbestos. The workers were informed of the asbestos in the 1990s, and it
was removed in the early 2000s. Mr. Snoderly testified that twenty to twenty-five years of his
employment was spent as a mechanic and he was exposed to dust, including asbestos dust, during
that time. He had to remove asbestos insulation from pipes many times and often breathed in the
dust this process created. Respirators were introduced late into his employment. Mr. Snoderly
stated that after removing insulation, his clothing was covered in particles. While he was working
as a mechanic, Mr. Snoderly was also exposed to chemicals and coal tar pitch while working on
the pump bench. Mr. Snoderly stated that in order to clean pumps, he had to use a torch to burn
the tar off. Mr. Snoderly stated that there was a small hose and fan to remove the black smoke this
created from the room, but it was not very effective.
An Employee History Card indicates Mr. Snoderly was in the Army from 1967 to 1970.
He was a driller for Williamson Shaft from February 1970 to October 1971. Mr. Snoderly worked
as an electrician apprentice from October 1971 to May 1973. Mr. Snoderly began working for
Koppers on May 15, 1973, and worked there until he retired.
The Office of Judges affirmed the claims administrator’s rejection of the claim in its
February 7, 2020, Order. In order to file a claim for occupational pneumoconiosis, the claimant
must show that he or she was exposed to the hazards of occupational pneumoconiosis for not less
than two years during the ten years preceding the date of last exposure or five of any of the fifteen
years immediately preceding the date of last exposure. West Virginia Code § 23-4-1. Mr. Snoderly
argued before the Office of Judges that the majority of the time that he worked for the employer,
he worked as a maintenance worker. For approximately twelve of the last fifteen years of his
employment, Mr. Snoderly asserts that he was exposed to asbestos dust while performing
maintenance work. Mr. Snoderly argued before the Office of Judges that he was exposed to heavy
amounts of asbestos as late as the mid-1990s, when he was working on pipes covered in asbestos
insultation. Though it is outside of the last fifteen years of his employment, Mr. Snoderly asserted
that given the latency period for the development of asbestos related diseases, it is more likely than
not that such exposure contributed to his development of asbestosis. The Office of Judges found
that during his last fifteen years of employment, Mr. Snoderly spent one year working in the
storeroom and one to two years working on barges. Neither position exposed him to hazardous
dust.
The employer argued before the Office of Judges that Mr. Snoderly testified that during
the last fifteen years of his employment, he worked on the pump bench, in the storeroom, or on
the barge and that he was not exposed to hazardous dust while working any of those positions. The
employer noted that Mr. Snoderly asserted that he was exposed to asbestos while working on the
pump bench because parts of the pumps contained asbestos. The employer argued that asbestos
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was removed from the plant in the 90s and it is unlikely Mr. Snoderly was exposed after that time.
The employer asserts that during the last fifteen years of Mr. Snoderly’s employment, he was not
exposed to asbestos dust as he alleged. Mr. Snoderly stated in his testimony that he was working
on the pump bench by the 90s. After that, he was transferred to loading barges and then transferred
to the storeroom and auto mechanic garage. Mr. Snoderly testified that he was not exposed to dust
while working on the barge or while working in the storeroom. Mr. Snoderly also testified that the
storeroom and pump bench were located in the same large, open building. The employer therefore
argued that if Mr. Snoderly was not exposed to dust while working in the storeroom, he was not
exposed to dust while working on the pump bench in the same open building. The Office of Judges
concluded that the employer’s argument was persuasive and affirmed the claims administrator’s
rejection of the claim.
The Board of Review remanded the case for the development of additional evidence. In its
July 14, 2020, Order, the Board of Review found that Mr. Snoderly’s date of last exposure was
listed as September 30, 2011, the date that he retired. However, this date is incorrect because the
evidence does not show that Mr. Snoderly was exposed to asbestos fibers and dust up until his
retirement. Mr. Snoderly testified that he was exposed to asbestos fibers while working on the
maintenance gang and working as a steel man. He was performing neither of those jobs at the time
of his retirement. The Board of Review concluded that more information was necessary to
determine the correct date of last exposure.
After review, we agree with the reasoning and conclusions of the Board of Review.
Pursuant to West Virginia Code § 23-4-1, in order to file a claim for occupational pneumoconiosis,
a claimant must show that he or she was exposed to the hazards of occupational pneumoconiosis
for not less than two years during the ten years preceding the date of last exposure or five of any
of the fifteen years immediately preceding the date of last exposure. Therefore, in occupational
pneumoconiosis claims, the date of last exposure is extremely important for establishing
compensability. The evidence in this case clearly indicates that Mr. Snoderly was not exposed to
asbestos dust or other hazards of occupational pneumoconiosis until the date he retired. In order
to correctly evaluate Mr. Snoderly’s application for occupational pneumoconiosis, an accurate date
of last exposure must be established.
Affirmed.
ISSUED: January 11, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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