                                                                               FILED
                                                                         September 19, 2016
                                                                               released at 3:00 p.m.
No. 15-0397 – Pioneer Pipe v. Swain, et al.                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
WORKMAN, Justice, concurring:

              I reluctantly concur in the conclusion reached by the majority only because

the statute as written, together with the Commissioner’s blanket policy refusing to

apportion employer responsibility, leaves no room to conclude otherwise. However, I

would strongly encourage the Legislature and/or Insurance Commissioner to reexamine

its handling of this issue to ameliorate the inequitable results created, as well-illustrated

in the case at bar. As noted by the majority, the claimant worked mere hours for Pioneer

Pipe, yet it is saddled with the entirety of the charges resulting from his occupational

hearing loss. Mr. Swain worked for thirty-three years as a heavy equipment operator; as

among the employer parties to this appeal, he worked a little over a year for Brayman

Construction. Nevertheless, under the statute granting the Commissioner discretion as to

whether or not to allocate charges, Brayman escapes responsibility for any portion of Mr.

Swain’s hearing loss, and Pioneer gets hit with the entire obligation. The unfairness of

this result is apparent and plainly should evoke consideration by the Legislature and/or

Insurance Commissioner as to the wisdom of the statute and/or the Commissioner’s

misuse of the discretion granted him under the statute.



              Accordingly, I respectfully concur.




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