Workers' Comp Delays End; Widow Can Collect Benefits

Publication: THE SUNDAY GAZETTE-MAIL
Published: 02/17/2000
Headline: Workers' Comp Delays End; Widow Can Collect Benefits
Byline: PAUL J. NYDEN

SUNDAY GAZETTE-MAIL

A widow can finally begin collecting benefits more than a year after her husband died from lung disease on Feb. 6, 1999, at age 56.

Martin L. Byrd was exposed to asbestos fibers during 35 years working as an insulator at Union Carbide's Sistersville plant, later bought by Witco Corp./Organo-Silicones Group.

The state Workers' Compensation Fund repeatedly delayed hearings and refused to grant Byrd a permanent total disability (PTD) award, even after he was diagnosed with mesothelioma, a cancer that is always fatal. Mesothelioma victims usually die within 15 months of being diagnosed.

Ruling criticizes agency's denial of a timely hearing

R. Michael Shaw, chairman of the Workers' Compensation Appeal Board, wrote a ruling criticizing the agency's Office of Judges for denying Byrd a timely hearing.

"Due to this unconscionable delay, [Byrd] was not awarded a permanent total disability award, which he was clearly entitled to, during his lifetime."

Shaw also criticized a Supreme Court ruling that stated, "Long delays in processing claims for [Workers'] Compensation is not consistent with the declared policy of the Legislature to determine the rights of claimants as speedily and expeditiously as possible."

Sheryl Byrd and the couple's daughter will immediately begin receiving monthly benefits that will continue for the rest of Sheryl Byrd's life, unless she gets remarried.

The Appeal Board also awarded Byrd 25 months of disability benefits that her late husband would have received between Jan. 28, 1997, the date he was diagnosed with mesothelioma, and Feb. 6, 1999, the day he died.

'Sheryl Byrd kept getting collection notices'

E. William Harvit, a Charleston lawyer who represents the Byrd family, said the Workers' Compensation Fund must also pay more than $116,000 in medical bills for treating Martin Byrd.

'Sheryl Byrd kept getting collection notices from hospitals and doctors," Harvit said.

Shaw's ruling criticized the Worker's Compensation Fund of Judges for granting "unreasonable extensions" at the request of Gary J. Nickerson, a Steptoe & Johnson lawyer in Clarksburg who represents Witco Corp., which assumed all liabilities for Union Carbide when it purchased the Sistersville plant.

Shaw also chastised the agency for failing "to acknowledge the claimant's attorney [Harvit] and provide copies of documents to him" and for failing to "acknowledge and act upon the supplemental report" from Charleston physician Dominic Gaziano, a nationally recognized lung disease specialist.

Harvit first wrote to state Employment Programs Commissioner William Vieweg on Feb. 20, 1997, informing him that he would represent Byrd.

Vieweg and other agency officials ignored Harvit until they received a fifth letter from him a year later.

Commenting on Gaziano's medical reports, Shaw wrote that there was "no evidence to contradict the medical opinion that [Byrd] was permanently and totally disabled due to mesothelioma that was caused by asbestos in the workplace."

"In fact, even though the employer requested several extensions to develop evidence, the employer did not submit any evidence in this claim," Shaw stated.

Harvit had planned to appeal the case to the state Supreme Court.

 

To contact staff writer Paul J. Nyden, call
348-5164.