Heather Isringhausen Gvillo May 16, 2014, 3:51pm

CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court has agreed that a man's lung cancer is the result of a 36-year smoking habit rather than alleged asbestos exposure amid varying expert opinions.

In a memorandum decision, justices of the Supreme Court of Appeals of West Virginia on May 7 affirmed the state Workers' Compensation Board of Review's July 2012 decision, finding that William Boyce's injuries are the result of cigarette smoking, which escalated to two packs a day for 36 years.

The Board of Review reached its July 2012 decision after affirming the Workers' Compensation Office of Judges Order filed in February 2012.

Following the decision, Boyce appealed the Board of Review's ruling.

According to the decision, Boyce's case was brought against defendants West Virginia Office of Insurance Commissioner and the Wood County Board of Education, Boyce's employer.

Boyce alleged he developed occupational pneumoconiosis and lung cancer as a result of asbestos exposure while employed with the Wood County Board of Education.

He was diagnosed with lung cancer in 2005 and underwent a resection of his cancer that same year.

In a March 2007 letter, medical expert Dominic Gaziano, M.D., testified that Boyce suffered from asbestosis with a mild degree of pulmonary functional impairment. He attributed the lung cancer to both cigarette smoking and asbestos exposure.

Gaziano added that Boyce had an extensive history of asbestos exposure with accompanying pathologic findings consistent with asbestosis.

He further argued that Boyce had not smoked cigarettes since the 1980s, pointing to asbestos as the likely culprit for his lung cancer.

However, in February 2008, the claims administrator denied Boyce permanent partial disability benefits, finding that the Occupational Pneumoconiosis Board determined that Boyce actually had no pulmonary functional impairment.

Then in November 2010, expert Erika Crouch, M.D., reviewed samples of Boyce's lung tissue and reached the conclusion that there was no evidence of asbestosis present.

She opined that it was impossible to know that asbestos or occupational dust exposure contributed to Boyce's lung cancer development, and determined the major risk factor contributing to his lung cancer was cigarette smoking.

Medical expert Judith Kemp, M.D., also reviewed the same tissue samples as Crouch, but reached a difference conclusion. In a March 2011 letter, she indicated that the lung tissue showed the presence of asbestos fibers and histological changes consistent with asbestosis.

The Occupational Pneumoconiosis Board attributed Boyce's cancer to his 36-year, two-pack-a-day smoking habit in a hearing before the Office of Judges in September 2011.

The Board determined that while Boyce does suffer from asbestos-related pleural disease, he does not have asbestosis.

The Office of Judges later held a second hearing where the Board was presented with a recent CT scan of Boyce's chest and the radiologist's report, but the members did not change their opinion.

Further, Bradley Henry, M.D., also testifying for the Board, claimed he could not diagnose Boyce with asbestosis and disagreed with Gaziano's findings. Expert Jack Kinder, M.D., agreed, saying asbestos-related pleural disease can cause pulmonary impairment but only when it is quite extensive, which is not the case here.

Expert Johnsey Leef, M.D., who testified for the Board, reviewed the x-rays and contributed Boyce's lung cancer to his extensive history of cigarette smoking.

As a result, the Office of Judges affirmed the claims administrator's 2008 decision in its February 2012 order.

The Office of Judges found that the chest CTs from 2004, 2005 and 2007 confirmed that no markers for asbestosis existed.

Ultimately, the Office of Judges found that Kemp and Crouch reviewed the same samples of Boyce's lung tissue but arrived at opposite conclusions. Kemp believed Boyce had traces of asbestosis while Crouch did not.

The Board agreed with Crouch, arguing that without the presence of asbestosis, his cancer could not have developed as a result of his occupational asbestos exposure.

"The Office of Judges concluded that the Board considered the matter at two separate hearings and remained of the opinion that Boyce's lungs showed evidence of asbestos exposure but did not show the markers necessary to conclude that he had asbestosis," the decision states. "Without a diagnosis of asbestosis, his lung cancer could not be attributed to his occupational exposure."

The Board of Review later adopted the conclusions and affirmed the Office of Judges' order in its July 2012 decision.

The Supreme Court agreed with the reasoning and conclusions of the Board of Review. The court found that the Board of Review's decision is not in clear violation of any constitutional or statutory provision, it is not the result of erroneous conclusions of law and it is not based upon a material misstatement or mischaracterization of the evidentiary record.

It added that the Board's conclusion that Boyce's lung cancer can be attributed to his 36-year history of smoking two packs of cigarettes a day is reinforced by Crouch's pathology findings.

"The medical reports indicate that Boyce suffered from asbestos-related pleural disease but that he did not contract asbestosis in the course of his employment," it continued.

Justices Margaret Workman, Menis Ketchum and Allen Loughry II concurred in the ruling. Justices Robin Davis and Brent Benjamin dissented, but didn't provide a dissenting opinion.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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