W.Va. high court: Former steel worker's cancer claim compensable

By Jessica M. Karmasek | Sep 18, 2012

Chief Justice Menis Ketchum

CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals last week upheld an order by the state's workers' compensation board finding a former steel workers' claim for bladder cancer compensable.

Severstal Wheeling Inc. -- formerly Wheeling-Pittsburgh Steel Corp. -- appealed the Workers' Compensation Board of Review's final order dated Jan. 21, 2011 to the state's high court.

In its order, the board affirmed a June 24, 2010 decision issued by the Workers' Compensation Office of Judges.

The Office of Judges, in its ruling, reversed a claims administrator's May 19, 2008 order and held Ernest Gambellin's claim compensable for bladder cancer as an occupational disease.

Gambellin, who worked for Severstal in several positions, filed an injury report alleging bladder cancer as an occupational disease on April 25, 2008.

The claims administrator denied the claim for a "lack of causal relationship" between the alleged disease and Gambellin's employment.

However, the Office of Judges held that the "preponderance of the evidence" established the claim was compensable for an occupational disease under state code.

Severstal disagreed and argued on appeal that Gambellin failed to meet his evidentiary burden of showing that he was exposed to hazards at work and that such hazards caused his condition.

In its memorandum decision filed Friday, the state's high court pointed out that the Office of Judges considered the evidence "at length."

"The Office of Judges noted that the evidence established that Mr. Gambellin was subjected to dermal and inhalation exposure of coal tar pitch and coal tar in his job, and that certain safety measures were at many times not working," the Court wrote in its two-page ruling.

"It also noted that an OSHA report confirmed Mr. Gambellin's testimony that the gas blanketing system was often inoperable, and that maintenance and repairs at the plant lacked in several areas.

The Court also pointed out that the Office of Judges found that a toxicologist acknowledged that exposure to coke oven emissions, such as coal tar pitch, crude coal tar and coke oven gas, has been associated with bladder cancer.

Additionally, the Office of Judges found Severstal's argument that Gambellin was a smoker not credible, the Court said.

"For the foregoing reasons, we find that the decision of the Board of Review is not in clear violation of any constitutional or statutory provision, nor is it clearly the result of erroneous conclusions of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record," the Court concluded.

"Therefore, the Board of Review order is affirmed."

Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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