Bayer Corporation v. Toney, W Va: Supreme Court of Appeals 2013 (2013)

Our plain-English summary of Bayer Corporation v. Toney, W Va: Supreme Court of Appeals 2013 (West Virginia Supreme Court of Appeals, November 18, 2013).

Luann Toney, widow of John Toney III, sought workers' compensation dependents' benefits from his employer, Bayer Corporation. Mr. Toney had worked as a chemical operator for Bayer from 1986 to 2008. She alleged that workplace asbestos exposure caused his malignant mesothelioma, and he died in July 2009. The claims administrator rejected the claim. The Office of Judges reversed and granted benefits, finding he had testicular mesothelioma from workplace asbestos exposure that contributed materially to his death. It relied on depositions saying he beat insulation out of pipes and scraped gaskets, and on the Occupational Pneumoconiosis Board's findings. It gave little weight to a Bayer safety representative who had not made a formal assessment, and to two doctors who denied asbestos was the cause but offered no alternative cause. The Board of Review affirmed. Bayer appealed, arguing the medical evidence did not link intermittent exposure to the cancer. The West Virginia Supreme Court affirmed, finding no legal error or mischaracterization of the record.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: West Virginia Supreme Court of Appeals
• Decided: November 18, 2013
• Docket: No. 12-0243
• Stage: Appeal from workers' compensation or benefits
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: West Virginia

Outcome. The West Virginia Supreme Court affirmed the Board of Review's order granting Luann Toney dependents' benefits, ruling against Bayer Corporation.

What the court held. The court affirmed because the Board of Review's decision was not clearly a violation of constitutional or statutory provisions, not clearly the result of erroneous legal conclusions, and not based on a material misstatement or mischaracterization of the evidentiary record.

Issues decided: Causation, Employer and Contractor Liability, and Workers' Compensation.

The people and their exposure

• John Toney III: testicular mesothelioma; died

The defendants

• Bayer Corporation (employer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

BAYER CORPORATION, Employer Below, Petitioner

v.

LUANN TONEY, WIDOW OF JOHN TONEY III (DECEASED), Claimant Below, Respondent

No. 12-0243.

Filed: November 18, 2013.

Supreme Court of Appeals of West Virginia.

MEMORANDUM DECISION

Petitioner Bayer Corporation, by Timothy E. Huffman, its attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Luann Toney, by E. William Harvit, her attorney, filed a timely response. This appeal arises from the Board of Review's Final Order dated January 25, 2012, in which the Board affirmed a July 22, 2011, Order of the Workers' Compensation Office of Judges. In its Order, the Office of Judges reversed the claims administrator's December 18, 2009, decision rejecting Ms. Toney's claim for dependents' benefits. The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. This 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 Procedure. Mr. Toney worked as a chemical operator for Bayer Corporation from November of 1986 until April 23, 2008. Ms. Toney alleges that Mr. Toney was exposed to occupational asbestos, and it caused malignant mesothelioma, which led to his death in July of 2009. The claims administrator rejected Mr. Toney's application for workers' compensation benefits. The Occupational Pneumoconiosis Board concluded that Mr. Toney was exposed to occupational asbestos and that it could have caused his malignant mesothelioma. Dr. Lockey and Dr. Ranavaya found occupational asbestos exposure was not the cause of Mr. Toney's malignant mesothelioma.

The Office of Judges reversed the claims administrator's decision, and granted the claim for dependents' benefits, and held that Mr. Toney contracted testicular mesothelioma as a result of his exposure to asbestos in his workplace and that it contributed in a material degree to his death. Bayer Corporation disagrees and asserts that the medical evidence of record fails to establish a direct link between Mr. Toney's alleged intermittent exposure to asbestos and the testicular cancer, which resulted in his death.

The Office of Judges concluded by a preponderance of the evidence that Mr. Toney was exposed to asbestos at work, and that his contact with asbestos was not infrequent nor merely occasional. The Office of Judges based its conclusions upon Mr. Toney's and Mr. Stone's depositions that Mr. Toney beat insulation out of pipes on a regular basis to fix a pipe leak and scraped materials out of gaskets. Mr. Wey, a health, safety, and environment representative for the employer during 2002 to 2010, stated that Mr. Toney's job responsibilities would not have required him to work directly with asbestos, even though asbestos materials could have been present in the workplace. The Office of Judges determined that Mr. Wey's opinion was not persuasive since he failed to conduct a formal assessment, and only reviewed Mr. Toney's job description and inquired if Mr. Toney had ever reported asbestos exposure. The Office of Judges relied on the Occupational Pneumoconiosis Board's conclusions that Mr. Toney's exposure outside of work was minimal and that his work-related exposure was much greater. The Office of Judges relied on the Occupational Pneumoconiosis Board's conclusions. The Occupational Pneumoconiosis Board found that Mr. Toney's only risk factor for developing malignant mesothelioma was his exposure to asbestos. The Office of Judges found the Occupational Pneumoconiosis Board's testimony provided an explanation of how testicular mesothelioma can be developed from asbestos exposure. The Office of Judges noted that Dr. Lockey and Dr. Ranavaya opined that asbestos exposure was not the cause of the malignant mesothelioma, but were unable to provide an alternative cause of Mr. Toney's disease. The Office of Judges held that Mr. Toney contracted testicular mesothelioma as a result of his

exposure to asbestos in his workplace, and that it contributed in a material degree to his death. The Board of Review reached the same reasoned conclusions in its decision of January 25, 2012. We agree with the reasoning and conclusions of the Board of Review.

For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed. Affirmed.

Chief Justice Brent D. Benjamin, Justice Robin J. Davis, Justice Margaret L. Workman, Justice Menis E. Ketchum and Justice Allen H. Loughry II, concurred.

Sources

• The opinion on Google Scholar
• West Virginia asbestos laws
• West Virginia asbestos exposure sites