WORKERS' COMP FUND BENEFITS OFTEN DELAYED IN ASBESTOS-RELATED CASES

WORKERS' COMP FUND BENEFITS OFTEN DELAYED IN ASBESTOS-RELATED CASES

Publication: THE CHARLESTON GAZETTE
Published: 05/24/1999
Page: P1A
Headline: WORKERS' COMP FUND BENEFITS OFTEN DELAYED IN ASBESTOS-RELATED CASES
Byline: PAUL J. NYDEN, STAFF WRITER

Mesothelioma is always fatal. Once a physician diagnoses the painful disease, a victim usually dies within a year.

Mesothelioma, relatively rare, is a cancer of the lung membranes. It comes from breathing asbestos fibers. Most victims also suffer from asbestosis.

But mesothelioma takes years to develop and diagnose. Workers often retire suffering from related illnesses, such as asbestosis, before they learn they also have mesothelioma.

Some workers afflicted with mesothelioma and asbestosis apply for Workers' Compensation Fund benefits during the last months of their lives.

Typically, physicians on the Occupational Pneumoconiosis Board and officials at the Workers' Compensation Fund stall and delay granting
their claims.

"There is a system in place to delay their claims," said E. William Harvit, a Charleston lawyer who represents injured workers.

And when a worker who did receive compensation benefits dies, the Workers' Compensation Fund often denies survivor's benefits to his widow.

Last week, Employment Programs Commissioner William Vieweg did not return telephone calls. Vieweg is now on vacation.

Harvit said he and his law partner, William K. Schwartz, are now getting a new client every month or so suffering mesothelioma and related diseases. Last week, Harvit told some of their stories.

---

For 30 years, Lyman Joyce installed and removed insulation for Union Carbide. Before he died, Joyce was getting a 15 percent permanent total disability (PTD) award.

In January 1998, a pathology report from Dr. Alan C. Harris at Putnam General Hospital stated that Joyce, 85, was suffering from "malignant peritoneal mesothelioma."

Joyce died a month later. His Feb. 8 death certificate, signed by Dr. Dennis M. Cupit, listed the cause of death as "malignant mesothelioma/asbestos exposure."

On July 21, 1998, the Occupational Pneumoconiosis Board ruled "occupational pneumoconiosis was not a material contributing factor"
to his death. Board members - Drs. James H. Walker, Jack L. Kinder and Thomas M. Hayes - signed the order.

On Sept. 12, Victoria Smoot, manager of Workers' Compensation's Occupational Pneumoconiosis Unit, sent a letter to Miami Joyce in Scott Depot. It rejected her claim for widow's benefits, stating, "Occupational pneumoconiosis did not cause nor was a contributing factor in the employee's death."

Harvit is currently appealing Smoot's ruling. Last week, Wheeling pathologist Jaywant P. Parmar wrote that cancer had spread throughout Joyce's body "due to the direct effects of a rapidly growing peritoneal mesothelioma."

---

Sometimes an injured worker wins, and wins relatively quickly. The Occupational Pneumoconiosis Board rejected a claim filed by William Spurlock, who is still alive. Working at Union Carbide for 39 years, from 1947 to 1986, Spurlock was continually exposed to asbestos insulation fibers.

In January 1998, Dr. Edmundo Figueroa of Charleston diagnosed Spurlock with mesothelioma. In July 1998, Spurlock filed a claim for total lung impairment. Last month, the Workers' Compensation Fund approved the claim.

But Edwin P. Cook, a Workers' Compensation claims manager, denied Spurlock any benefits, in an April 9 letter, "because the claimant has attained the age necessary to receive federal old age retirement benefits."

Harvit immediately filed an appeal in Kanawha Circuit Court against Vieweg and the Workers' Compensation Fund.

Harvit cited recent West Virginia Supreme Court rulings preventing the Workers' Compensation Fund from terminating PTD benefits when claimants become eligible for Social Security.

Vieweg and his agency quickly reversed themselves. Senior Counsel Donald L. Hall signed a May 11 order awarding Spurlock, 65, his disability benefits.

Last week, Harvit speculated that Hall and Workers' Comp reversed themselves before a circuit court could issue a ruling setting a binding legal precedent.

---

Floyd McBride worked for the FMC Corp. as a pipe fitter for 40 years, between 1942 and 1982.

In February 1992, while he was still alive, McBride won a PTD award for injuries from breathing asbestos fibers. In November 1995, McBride died from cancer of the larynx. His widow applied to keep his benefits.

Walker, chairman of the Occupational Pneumoconiosis Board, testified at a Sept. 18, 1997, hearing: "It would be my opinion that [McBride is] totally impaired as a result of his occupational dust exposure."

Hayes, a second board member, stated that McBride's health problems were "compatible with the diagnosis of asbestosis." Kinder, a third board member, mentioned that McBride had a history of drinking and smoking, but did suffer from asbestosis.

A year later, on Sept. 15, 1998, the same three physicians signed a letter stating: "Occupational pneumoconiosis was not a material contributing factor in Mr. McBride's death."

Two months later, Smoot wrote Lorene McBride a letter rejecting her claim for widow's benefits.

Harvit is appealing Smoot's denial. Lorene McBride's claim for widow's benefits will soon have a hearing before the Workers' Compensation Office of Judges.

To contact staff writer Paul J. Nyden, call 348-5100.