Lewis A. Weis v. Natkin & Company ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
LEWIS A. WEIS
v. Record No. 1657-95-2 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
NATKIN & COMPANY, ET AL. APRIL 30, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Edmund R. Michie (Gary W. Kendall; Michie,
Hamlett, Lowry, Rasmussen & Tweel, P.C., on
briefs), for appellant.
Jill M. Misage (John M. Oakey, Jr.; McGuire,
Woods, Battle & Boothe, L.L.P., on brief),
for appellees The Rust Engineering Company,
Stewart Mechanical Enterprises, and The
Standard Fire Insurance Company.
(Glenn S. Phelps; R. Ferrell Newman;
Thompson, Smithers, Newman & Wade, on brief),
for appellees Tidewater Construction Company
and Liberty Mutual Fire Insurance Company.
Appellees submitting on brief.
(Mary Louise Kramer; Jennifer G. Marwitz;
Sands, Anderson, Marks & Miller, P.C., on
brief), for appellees Henkles & McCoy, Inc.
and Liberty Mutual Fire Insurance Company.
Appellees submitting on brief.
(Ralph L. Whitt, Jr.; Sands, Anderson, Marks
& Miller P.C., on brief), for appellees
Catalytic, Inc. and National Union Fire
Insurance Company of Pittsburgh. Appellees
submitting on brief.
(Steven H. Theisen; Midkiff & Hiner, P.C., on
brief), for appellees August Winter & Sons,
Inc. and Sentry Insurance. Appellees
submitting on brief.
No brief or argument for appellees Natkin &
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Company, Travelers Insurance Company,
Babcock & Wilcox, Travelers Indemnity Company
of Illinois, Stone & Webster, Continental
Casualty Company, United Engineers &
Constructors, Inc., Lummus Corporation,
Transportation Insurance Company, Morrison
Knudsen Company, R.S. Harritan Company, Inc.,
Employers Insurance of Wausau and Aetna
Casualty & Surety Co.
Lewis A. Weis (claimant) appeals from a decision of the
Virginia Workers' Compensation Commission (commission) that held
he had not met his burden to prove he was entitled to
compensation benefits for Stage 1 asbestosis from either of his
thirteen former employers. 1
The sole issue presented by this appeal is whether the
commission erred by not applying the conclusive presumption
provided in Code § 65.2-404(B) to the evidence of claimant's
employment at Rust Engineering Company (Rust).
Viewing the evidence most favorable to the prevailing party
below, Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App.
503, 504, 339 S.E.2d 916, 916 (1986), the record discloses that
on May 18, 1991, Dr. Kirk Brendlinger communicated to claimant
that claimant had contracted Stage 1 asbestosis. Shortly
thereafter, claimant applied to the commission for compensation
1
Briefly described, those named employers are: Natkin &
Company; Stewart Mechanical Enterprises, Inc.; Babcock & Wilcox;
Stone & Webster Engineering Corporation; Morrison Knudsen
Company; R. S. Harritan Company, Inc.; United Engineers and
Constructor, Inc.; Rust Engineering Company; Lummus
Construction; Henkles & McCoy, Inc.; Tidewater Construction
Company; August Winter & Sons, Inc.; and Catalytic, Inc.
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benefits, claiming that his disease had been caused by his
employment with the above-named defendant employers. Claimant's
application--and later testimony--asserted that his last
injurious exposure to asbestos was at each named employer.
Continuously between December 1980 and April 1982, claimant
was employed by Rust at the West Point Paper Mill. During that
period, for more than ninety work-shifts, in the course of his
employment he was exposed in varying degrees to asbestos.
Thereafter, at varying times, claimant worked for the other named
employers, being exposed to asbestos during each employment but
never for as many as ninety work-shifts. His last employment at
which he was exposed to asbestos was with Natkin & Company
(Natkin) at the Anheuser-Busch Plant site.
Rust argues that the evidence supports the finding that
claimant has not met his burden to prove "the location of his
last injurious exposure to asbestos"; that the burden is not on
employer to prove that claimant was not injuriously exposed to
asbestos, instead that burden is on claimant; that the
commission's finding that claimant "cannot demonstrate any
extended or intense exposure to asbestos" at any of his places of
employment is a factual finding binding upon this Court; that
Code § 65.2-404 does not relieve claimant of the burden to prove
"the last time of exposure"; and, in the alternative to the
above, there was credible evidence to show that claimant's last
exposure to asbestos was from April 24, 1984 to July 11, 1984
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while claimant was employed by Natkin on the Anheuser-Busch job.
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It is undisputed that between December 1980 and April 1982,
claimant was continuously employed by Rust as a supervisory
pipefitter and that he frequently cut into asbestos pipe
coverings causing asbestos dust to be released into the air. In
"remov[ing] the pipe" "out [of] the building or whatever" "or off
the roof" "the insulator would knock the insulation off" which
created asbestos dust. Claimant testified in detail about how he
was exposed to asbestos dust. Although he did not actually
perform that work daily as a supervisor, his duties required that
he be where asbestos removal was being performed on a daily
basis. At no time was he supplied with masks or other protection
from asbestos. When asked whether he was exposed to asbestos at
Rust on more than ninety workdays, he testified that he was
exposed to asbestos on "more like a year" of workdays. His
evidence was not refuted.
In this appeal, claimant contends only that the commission
erred when it did not find Rust liable because "he had a year's
worth of exposure while working for Defendant Rust Engineering,
and Va. Code Ann. § 65.2-404[B] [sic] provides a conclusive
presumption of injurious exposure [when in the course of his
employment an employee is] exposed [to asbestos for] 90 or more
shifts of work."
Code § 65.2-404(A)-(B) provides:
What employer and carrier liability.--A.
When an employee has an occupational disease
that is covered by this title, the employer
in whose employment he was last injuriously
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exposed to the hazards of the disease and the
employer's insurance carrier, if any, at the
time of the exposure, shall alone be liable
therefor, without right to contribution from
any prior employer or insurance carrier.
B. For the purposes of this section,
"injurious exposure" means an exposure to the
causative hazards of such disease which is
reasonably calculated to bring on the disease
in question. Exposure to the causative
hazard of pneumoconiosis for ninety work
shifts shall be conclusively presumed to
constitute injurious exposure.
The commission stated its basis for denying benefits to
claimant as follows:
The claimant carries the burden of proving
that his exposure to asbestos was reasonably
calculated to trigger the disease.
Caudle-Hyatt, Inc. v. Mixon, 220 Va. 495, 260
S.E.2d 193 (1979). In the absence of 90
work-shifts of asbestos contact, the claimant
has not carried his burden of proving the
duration and intensity of exposure necessary
to establish "injurious exposure" under the
Act. The fact that he was present on these
job sites, without evidence of intense or
harmful exposure, is not a sufficient basis
for finding injurious exposure.
If in finding an "absence of 90 work-shifts of asbestos contact,"
the commission was holding that there was no evidence that would
support that finding, the commission erred.
Generally, a ruling by the commission that the claimant's
evidence is insufficient to prove that an injury was causally
related to the employment must be upheld on appeal because the
question is one of causation, which is a factual determination
frequently turning upon the weight and credibility accorded the
evidence. Stancil v. Ford Motor Co., 15 Va. App. 54, 57, 421
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S.E.2d 872, 874 (1992) (citing Code § 65.2-706(A)); see also
Eccon Construction Company v. Lucas, 221 Va. 786, 790, 273 S.E.2d
797, 799 (1981).
The commission found that "[f]rom December 1980 to April
1982, the claimant was employed by Rust Engineering at the West
Point Paper Mill, making 'tie-ins'. To do so, he had to cut
through old insulation on the pipes, causing asbestos dust in the
air. He estimates that he was exposed to asbestos during one
year of this employment." The record supports that finding.
Uncontradicted evidence shows that during his employment with
Rust claimant was exposed to asbestos for more than ninety work
days. Nevertheless, the commission inexplicably found that there
was an "absence" of evidence of exposure for ninety work-shifts;
therefore, the commission opined that claimant did not meet "his
burden of proving the duration and intensity of exposure [at any
employment] necessary to establish 'injurious exposure' under the
Act."
To recover compensation benefits, the burden is on the
claimant to establish by a preponderance of the evidence in whose
employment he was last injuriously exposed to asbestos, Blue
Diamond Coal v. Pannell, 203 Va. 49, 53, 122 S.E.2d 666, 669
(1961); Pocahontas Fuel Co. v. Godbey, 192 Va. 845, 852-53, 66
S.E.2d 859, 864 (1951), and the claimant must prove that the
exposure was "reasonably calculated to bring on the disease in
question." Mixon, 220 Va. at 499, 500-01, 260 S.E.2d at 195,
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196. The definition of "injurious exposure" contained in
Pocahontas has been supplanted by the statutory definition of
"injurious disease." See Mixon, 220 Va. at 499, 260 S.E.2d at
195. Liability may be fixed only on one employer and that is the
employer at which the claimant proved he was "last injuriously
exposed," not merely exposed. Hawkeye Security v. McDaniel, 210
Va. 209, 212, 169 S.E.2d 582, 585 (1969).
"Where reasonable inferences may be drawn from the evidence
in support of the commission's factual findings, they will not be
disturbed by this Court on appeal." Hawks v. Henrico County Sch.
Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988) (citation
omitted); see also Chase Packaging Corp. v. Dorsey, 15 Va. App.
248, 251, 421 S.E.2d 907, 909 (1992). Applying that principle to
all the employers for whom claimant did not work more than ninety
work-shifts, we are bound by the commission's decision that the
evidence did not support claimant's assertion that he was last
injuriously exposed to asbestos while in the employment of any of
those employers. However, because the evidence does disclose
that claimant was employed by Rust for more than ninety
work-shifts, we are not bound by the commission's finding that
claimant did not meet the burden required by the Act to entitle
him to compensation benefits from Rust for Stage 1 asbestos.
Notwithstanding the commission's use of the phrase "in the
absence of 90 work-shifts," the record unmistakably shows that
while in Rust's employ and in the course of that employment for a
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period of more than "90 work-shifts," claimant was exposed to
asbestos. Thus, pursuant to the provisions of Code § 65.2-404(B),
the commission was required to conclusively presume that claimant
was injuriously exposed to asbestos that caused the Stage 1
asbestosis from which claimant suffers.
The commission was not plainly wrong in its decision that
claimant failed to meet his burden to show that his exposure to
asbestos at any of his employers for whom he worked after leaving
Rust caused him to contract asbestosis. The evidence of his
exposure to asbestos presented against those employers clearly
was insufficient to invoke the provisions of subsection (B) of
Code § 65.2-404.
For the reasons stated, except as to Rust, we affirm that
portion of the commissions's finding which held that claimant had
not met his burden to prove he was last injuriously exposed to
asbestos in the course of his employment with any of the
defendant employers. As to Rust, we hold that claimant has met
his burden to prove that he had been exposed to the causative
hazard of the disease of asbestosis for ninety work-shifts while
in the employ of Rust and, therefore, with the aid of the
conclusive presumption, claimant met his burden to prove that he
was last injuriously exposed to the asbestos which was the cause
of his Stage 1 asbestosis while in the course of his employment
with Rust.
Accordingly, the decision of the commission is affirmed as
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to all defendants except Rust, and this case is remanded to the
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commission with instructions to enter an award consistent with
this opinion.
Affirmed in part,
reversed in part
and remanded.
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