                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                   August 24, 2017
ARNOLD MARCUM,                                                                  RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                    SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA


vs.)   No. 16-0924 (BOR Appeal No. 2051211)
                   (Claim No. 2013006289)

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Arnold Marcum, by Edwin H. Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Constellium Rolled Products
Ravenswood, by James W. Heslep, its attorney, filed a timely response.

        The issue on appeal is the proper date of last exposure in the claim brought by Mr.
Marcum. This appeal originated from the January 3, 2013, claims administrator’s decision
holding the claim compensable for occupational pneumoconiosis and fixing the date of last
exposure as October 30, 1990. Constellium Rolled Products appealed the decision and the Office
of Judges issued an Order on November 13, 2014, which modified the date of last exposure to
June 24, 2014. This Order was made final by the Office of Judges’ Order dated March 21, 2016,
reversing the claim’s administrator’s order dated July 12, 2013, and granting a 25% permanent
partial disability award in the claim. Constellium Rolled Products appealed this final Order, also.
The Board of Review considered both Orders from the Office of Judges in a consolidated
opinion and adopted the reasoning and conclusions of the Office of Judges with the exception of
those regarding the date of last exposure. On appeal, the sole issue is the appropriate date of last
exposure.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.


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        Arnold Marcum, a maintenance foreman, filed an application for workers’ compensation
benefits alleging that he developed occupational pneumoconiosis as a result of exposure to
occupational dust hazards in the course of his employment with Constellium Rolled Products.
Mr. Marcum was employed by Constellium Rolled Products from 1966 until his retirement on
June 24, 1998. On January 3, 2014, the claims administrator held Mr. Marcum’s claim
compensable for occupational pneumoconiosis and fixed Mr. Marcum’s date of last exposure to
the hazards of occupational pneumoconiosis as October 30, 1990.

         On October 8, 2013, Mr. Marcum testified in a deposition that while employed as a
maintenance foreman with Constellium Rolled Products, he was exposed to significant
occupational dust hazards on a daily basis. Mr. Marcum testified that he only performed work on
the fabrication side of the plant. Specific examples of his exposure to the hazards of occupational
pneumoconiosis included fixing furnaces and working in an area with large “soaking pits.” Mr.
Marcum stated that they would work on cranes and large fans would blow air into the soaking
pits, stirring up dust all day long. At the time of his employment, Constellium Rolled Products
did not require its employees to wear safety masks. However, upon filling in as a relief worker
after his retirement, Mr. Marcum noted that plastic covers had been placed over the soaking pits
to prevent dust from being stirred up, as well as other improvements.

        On March 13, 2014, Mike Merrifield, a Certified Industrial Hygienist employed by
Constellium Rolled Products, authored an affidavit. Mr. Merrifield’s affidavit covers the time
period from October 31, 1990, through the date of Mr. Marcum’s retirement, June 24, 1998. Mr.
Merrifield noted that the nature of Mr. Marcum’s employment within the maintenance
department required that he perform work in several different areas of the plant, and he therefore
included an analysis of data obtained from the “Fabrication West”, “Hot Rolling”, “Scalping”,
“Plate”, and maintenance departments. Mr. Merrifield stated that the Occupational Safety and
Health Administration (hereinafter “OSHA”) performed a comprehensive inspection at
Constellium Rolled Products from June of 1991 through October of 1991, with OSHA finding no
evidence of occupational dust hazards associated with any of the departments referenced within
the affidavit. He stated that the principal of representative sampling, which is sanctioned and
mandated by OSHA, was used to extrapolate data for the entire time period covered by the
affidavit. Mr. Merrifield further stated that the sampling data revealed average concentrations of
hazardous substances so far below recognized exposure limits for the substances in question that
Mr. Marcum was not exposed to any abnormal, harmful, or hazardous quantities of dust or any
other substance during the time period covered by the affidavit. Finally, Mr. Merrifield stated
that based upon his investigation of the work environment in the departments referenced in the
affidavit; the results of dust level sampling; and his own personal observations, experiences, and
training as an industrial hygienist, Mr. Marcum was not exposed to any abnormal, excessive, or
harmful quantities of dust or any other substance after October 30, 1990.

         On August 14, 2014, Mr. Merrifield testified in a deposition that nothing he had covered
in his affidavit had changed. Mr. Merrifield had referenced October 30, 1990, as the date of last
exposure because it was strictly a pattern used in the course of his employment. It was his
opinion that after that date, there was no exposure to the hazards of dust. Mr. Merrifield did state
that it was an error to say that Mr. Marcum did not work during the period of the labor strike that
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lasted from October 30, 1990 through June 29, 1992. Mr. Marcum was a salaried employee and
continued to work through the dispute, although Mr. Merrifield was unsure of how often. With
regard to the data attached to his prior affidavit, Mr. Merrifield noted that there were 191 total
fiber samples and seventy-nine total dust samples. These samples were from the departments
referenced in his affidavit that he believed to be pertinent to Mr. Marcum’s work schedule. Mr.
Merrifield admitted that asbestos fibers were found in 1993, 1994, 1995, and 1996 in the
maintenance areas. While Mr. Marcum would have been exposed to the fibers, Mr. Merrifield
testified that the concentration was well below the limit set forth by OSHA. No fiber or asbestos
samples were taken prior to September 9, 1993; however, Mr. Merrifield was comfortable with
the accuracy of the samples as being representative of that time period.

        In its Order modifying the January 3, 2013, claims administrator’s decision, the Office of
Judges held that Mr. Marcum’s proper date of last exposure to the hazards of occupational
pneumoconiosis is June 24, 1998. The Board of Review modified the Order of the Office of
Judges and stated that Mr. Marcum’s date of last exposure to the hazards of occupational
pneumoconiosis to June 30, 1991. On appeal, Mr. Marcum asserts that the evidence of record
demonstrates that he was exposed to the hazards of occupational pneumoconiosis until his last
date of employment prior to his retirement, June 24, 1998.

       The sole issue in the instant appeal concerns the identification of the proper date of Mr.
Marcum’s last exposure to the hazards of occupational pneumoconiosis. West Virginia Code of
State Rules § 85-20-52.2 (2006) states:

               If the employer submits credible evidence demonstrating that it has
               been in compliance with OSHA and/or MSHA permissible
               exposure levels, as determined by sampling and testing performed
               in compliance with OSHA and/or MSHA regulations for the dust
               alleged by the injured worker, then the Commission, Insurance
               Commissioner, private carrier or self-insured employer, whichever
               is applicable, may consider that the dust exposure alleged by the
               injured worker does not suffice to satisfy the exposure
               requirements of W. Va. Code §§23-4-1(b) and 23-4-15(b) only for
               the period(s) covered by the sampling or testing. In order for the
               evidence to be deemed credible, it must be based upon regularly
               scheduled exposure samples from each work area where harmful
               exposure has been alleged, which samples will be obtained by
               certified industrial hygienists as defined by OSHA and/or MSHA
               regulations or government agencies, and the samplings must be
               obtained during the period for which the employer is seeking to
               avoid chargeability.

       The Office of Judges found that a preponderance of the evidence supported a date of last
exposure as June 24, 1998. At a minimum, it had been admitted that Mr. Marcum did not cease
work during the labor strike, but continued through its cessation on June 29, 1992. The Office of
Judges noted that it accepted the principal of representative sampling but found that very few of
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the samples submitted by Mr. Merrifield covered the maintenance department and none
referenced the soaking pits that Mr. Marcum had referred to in his deposition. Further, the Office
of Judges found that the varied samples submitted did not constitute regularly scheduled samples
as required by West Virginia Code of State Rules § 85-20-52.2 and thus were deemed not
credible. The Office of Judges concluded that Mr. Marcum did suffer exposure to abnormal
quantities of dust up until the time he retired on June 24, 1998.

        On September 1, 2016, the Board of Review issued an Order noting that it agreed with
the analysis and conclusions of the Office of Judges with the exception of those regarding the
date of last exposure, which the Board of Review found were clearly wrong in view of the
reliable, probative, and substantial evidence of record. The Board of Review took note of Mr.
Merrifield’s conclusion that Mr. Marcum was not exposed to occupational dust hazards after
October 30, 1990. However, the Board of Review found that Mr. Merrifield’s affidavit did not
provide any information regarding Mr. Marcum’s exposure to occupational dust hazards from
October 31, 1990, through June of 1991. The Board of Review also took note of a similar claim
in Vernon Marcum v. Constellium Rolled Products Ravenswood, No. 15-0143 (W.VA. Supreme
Court, November 4, 2015) (memorandum decision). This Court held that that although Mr.
Vernon Marcum testified that he was exposed to the hazards of occupational pneumoconiosis
until the date of his retirement, Mr. Merrifield’s affidavit established that Mr. Vernon Marcum
was not exposed to the hazards of occupational pneumoconiosis throughout the entirety of his
employment with Constellium Rolled Products. Regarding the instant claim, the Board of
Review adopted the same reasoning and found that when considering the evidentiary record and
the principal of representative sampling, Constellium Rolled Products was in compliance with
OSHA permissible exposure levels for respirable dust hazards from July 1, 1991, pursuant to the
OSHA comprehensive inspection beginning in June of 1991, until Mr. Marcum’s retirement on
June 24, 1998. The Board of Review then concluded that Mr. Marcum’s proper date of last
exposure is June 30, 1991.

        We agree with the reasoning and conclusions set forth by the Board of Review. Although
Mr. Marcum testified that he was exposed to the hazards of occupational pneumoconiosis until
the date of his retirement, Mr. Merrifield’s affidavit establishes that Mr. Marcum was not
exposed to the hazards of occupational pneumoconiosis throughout the entirety of his
employment with Constellium Rolled Products. Mr. Merrifield’s affidavit establishes that air
quality sampling was performed in compliance with all OSHA regulations and was conducted
using a methodology approved by the National Institute for Occupational Safety and Health. The
results of the sampling reveal that Mr. Marcum was not exposed to the hazards of occupational
pneumoconiosis after June 30, 1991.

        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. Therefore, the decision of the Board of Review is affirmed.



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                                        Affirmed.

ISSUED: August 24, 2017


CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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