                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
BAYER CORPORATION,                                                             November 18, 2013
                                                                            RORY L. PERRY II, CLERK
Employer Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0243 (BOR Appeal No. 2046250)
                   (Claim No. 2010101089)

LUANN TONEY, WIDOW OF
JOHN TONEY III (DECEASED),
Claimant Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Bayer Corporation, by Timothy E. Huffman, its attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Luann Toney, by E. William
Harvit, her attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 25, 2012, in
which the Board affirmed a July 22, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s December 18,
2009, decision rejecting Ms. Toney’s claim for dependents’ benefits. The Court has carefully
reviewed the records, written arguments, and appendices contained in the briefs, and the case is
mature for consideration.

       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.

       Mr. Toney worked as a chemical operator for Bayer Corporation from November of 1986
until April 23, 2008. Ms. Toney alleges that Mr. Toney was exposed to occupational asbestos,
and it caused malignant mesothelioma, which led to his death in July of 2009. The claims
administrator rejected Mr. Toney’s application for workers’ compensation benefits. The
Occupational Pneumoconiosis Board concluded that Mr. Toney was exposed to occupational
asbestos and that it could have caused his malignant mesothelioma. Dr. Lockey and Dr.
Ranavaya found occupational asbestos exposure was not the cause of Mr. Toney’s malignant
mesothelioma.
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        The Office of Judges reversed the claims administrator’s decision, and granted the claim
for dependents’ benefits, and held that Mr. Toney contracted testicular mesothelioma as a result
of his exposure to asbestos in his workplace and that it contributed in a material degree to his
death. Bayer Corporation disagrees and asserts that the medical evidence of record fails to
establish a direct link between Mr. Toney’s alleged intermittent exposure to asbestos and the
testicular cancer, which resulted in his death.

       The Office of Judges concluded by a preponderance of the evidence that Mr. Toney was
exposed to asbestos at work, and that his contact with asbestos was not infrequent nor merely
occasional. The Office of Judges based its conclusions upon Mr. Toney’s and Mr. Stone’s
depositions that Mr. Toney beat insulation out of pipes on a regular basis to fix a pipe leak and
scraped materials out of gaskets. Mr. Wey, a health, safety, and environment representative for
the employer during 2002 to 2010, stated that Mr. Toney’s job responsibilities would not have
required him to work directly with asbestos, even though asbestos materials could have been
present in the workplace. The Office of Judges determined that Mr. Wey’s opinion was not
persuasive since he failed to conduct a formal assessment, and only reviewed Mr. Toney’s job
description and inquired if Mr. Toney had ever reported asbestos exposure. The Office of Judges
relied on the Occupational Pneumoconiosis Board’s conclusions that Mr. Toney’s exposure
outside of work was minimal and that his work-related exposure was much greater.

       The Office of Judges relied on the Occupational Pneumoconiosis Board’s conclusions.
The Occupational Pneumoconiosis Board found that Mr. Toney’s only risk factor for developing
malignant mesothelioma was his exposure to asbestos. The Office of Judges found the
Occupational Pneumoconiosis Board’s testimony provided an explanation of how testicular
mesothelioma can be developed from asbestos exposure. The Office of Judges noted that Dr.
Lockey and Dr. Ranavaya opined that asbestos exposure was not the cause of the malignant
mesothelioma, but were unable to provide an alternative cause of Mr. Toney’s disease. The
Office of Judges held that Mr. Toney contracted testicular mesothelioma as a result of his
exposure to asbestos in his workplace, and that it contributed in a material degree to his death.
The Board of Review reached the same reasoned conclusions in its decision of January 25, 2012.
We agree with the reasoning and conclusions of the Board of Review.

        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.

                                                                                        Affirmed.




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ISSUED: November 18, 2013

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




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