                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
RANDY TORRIS,                                                                   October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0009	 (BOR Appeal No. 2046178)
                    (Claim No. 2010105245)

ALCAN ROLLED PRODUCTS-RAVENSWOOD, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Randy Torris, by Edwin H. Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alcan Rolled Products-Ravenswood,
LLC, by H. Toney Stroud, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 13, 2011, in
which the Board affirmed a June 27, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 22,
2009, decision denying the claim for occupational pneumoconiosis 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. Torris allegedly suffered exposure to the hazards of occupational pneumoconiosis
while working as a furnace operator for Alcan Rolled Products-Ravenswood, LLC. The Office of
Judges affirmed the claims administrator’s decision and held that Mr. Torris had not met the
exposure requirements for a valid claim for occupational pneumoconiosis. On appeal, Mr. Torris
disagrees and asserts that he has shown he was exposed to the hazards of occupational
pneumoconiosis for the entire period of his employment, and therefore, has met the exposure
requirements set out in West Virginia Code § 23-4-1 (2008). Alcan Rolled Products-
Ravenswood, LLC maintains that it has performed industrial hygiene testing during Mr. Torris’s

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employment and has sufficiently proven to OSHA that it does not expose its employees to
excessive or harmful quantities of dust.

        West Virginia Code of State Rules § 85-20-52.2 (2006) states that if an 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, the claims administrator may consider that the dust
exposure alleged by the injured employee does not suffice to satisfy the exposure requirements
of West Virginia Code §§ 23-4-1(b) (2008) and 23-4-15(b) (2010) for the periods covered by the
sampling or the testing. Alcan Rolled Products-Ravenswood, LLC submitted representative
sampling to establish that it has been in compliance with OSHA’s permissible exposure limit
throughout Mr. Torris’s employment from February 10, 1997, through August 14, 2009, for the
casting department, and also submitted a comprehensive inspection performed by OSHA from
June of 1991 through October of 1991. Ultimately, the Office of Judges held that Mr. Torris did
not have the requisite exposure to the hazards of occupational pneumoconiosis. The Board of
Review reached the same reasoned conclusions in its decision of December 13, 2011. 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.

ISSUED: October 4, 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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