DYING MAN OFF TO COURT TO PROD WORKER'S COMP

Publication: THE CHARLESTON GAZETTE
Published: 03/13/2000
Page: P5A
Headline: DYING MAN OFF TO COURT TO PROD WORKER'S COMP
Byline: PAUL J. NYDEN
pjnyden@wvgazette.com

After waiting 11 months for state Workers' Compensation officials to act on his appeal, a cancer-ridden South Charleston man asked the state Supreme Court to order the agency to take action.

Wayne Tillman, in failing health from lung cancer, asked the state Supreme Court of Appeals on Friday to order Workers' Compensation Fund officials to hear his case soon.

Wayne Tillman says his lungs are permanently damaged from 34 years of breathing asbestos as an operator and maintenance worker at Union Carbide. The petition states Tillman was exposed to asbestos tape, rope, blankets, bricks, cements and other asbestos-containing insulating materials.

He might die "prior to the resolution of this matter. The delay ... is clearly injustice when considering the overwhelming evidence submitted in support of his claim," Charleston attorney E. William Harvit wrote in the court petition.

Tillman filed a claim on Sept. 14, 1998. Workers' Comp rejected it on April 8, 1999. The Office of Judges, headed by Chief Administrative Law Judge Robert Smith, has failed to take any action on Tillman's appeals for 11 months.

Today Tillman fears he will die before any action is taken. Two doctors' reports, filed as part of his appeal, back that up.

After analyzing tissue from Tillman's lung, pathologist Jaywant Parmar wrote last May, "The single, major and significant cause for the development of this lung cancer is his occupational exposure to asbestos."

Union Carbide, Tillman's employer, has submitted "no evidence to the contrary," Tillman's court petition states. Workers' Comp has "unnecessarily delayed his claim by failing to rule on issues of compensability and permanent total disability," it states.

Parmar also noted Tillman stopped smoking cigarettes "over 40 years prior to the development of this malignancy."

Charleston pulmonologist Dominic Gaziano, a nationally recognized expert, completed a second report in June. Gaziano concluded Tillman's lung damage resulted "to a reasonable degree of medical certainty" from "his occupational exposure to asbestos."

Smith and the Office of Judges then issued two extensions in July and September, delaying any decision. Faced with continued inaction, Tillman's attorney Harvit wrote four letters to Smith on Jan. 19, Jan. 28, Feb. 7, and Feb. 24, 2000.

"I am requesting an expedited decision in this claim due to Mr. Tillman's health condition," each letter stated. The letters went unanswered. Tillman filed an appeal with the Supreme Court.

On Friday, Smith said he would comment next week after he has had a chance to review the petition.

Harvit wants the Supreme Court to overrule the April 1999 ruling and grant Tillman "total and permanent disability benefits from an occupationally related lung disease."

To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.