The West Virginia Supreme Court recently affirmed the Board of Review’s ruling that a man’s lung cancer had been caused by 36 years of smoking rather than asbestos exposure at his workplace.
William Boyce was an employee for the Wood County Board of Education when in 2005 he was diagnosed with lung cancer and underwent a resection. In March 2007, a medical expert wrote a letter stating that Boyce suffered from asbestosis and mild pulmonary functional impairment. The expert claimed that the lung cancer was due both to smoking cigarettes and exposure to asbestos. However, the expert also noted that Boyce had stopped smoking cigarettes in the 1980s, whereas his exposure to asbestos was lengthier, and pathologic findings were consistent with asbestos exposure.
Regardless, the workers’ compensation claims administrator denied Boyce’s request for permanent disability benefits, stating that Boyce was found by the Occupational Pneumoconiosis Board to have no pulmonary functional impairment. Another expert reviewed samples of Boyce’s lung tissue in November 2010 and concluded that it showed no evidence of asbestos. She further noted that it was impossible for anyone to know whether asbestos contributed to the development of Boyce’s cancer, and that more likely the great risk factor that led to his lung cancer was smoking cigarettes.
This expert’s conclusions were contradicted by another medical expert. Looking at the same tissue samples, she noted in a letter dated March 2011 that the tissue showed signs that asbestos fibers were present, as were other changes consistent with the presence of asbestos. Yet, during a September 2011 hearing before the Office of Judges, the Occupational Pneumonoconiosis Board claimed that Boyce’s illness was due to smoking two packs per day for 36 years, regardless of whether he quit two decades earlier. The Office of Judges went on to hold a second hearing, where they viewed a CT scan of Boyce’s chest and a radiologist’s report, but it did not alter their opinion that cigarette smoke was the culprit. The Office of Judges therefore affirmed the claims administrator’s denial, prompting Boyce to appeal. In 2012, the Board of Review affirmed the Office of Judges’ decision, which meant that Boyce’s last hope was that the West Virginia Supreme Court would overrule them.
Instead, the West Virginia Supreme Court agreed with the lower bodies’ findings. The justices noted that the decision was not in clear violation of any constitutional or statutory provision, did not result from erroneous legal conclusions, and was not based on an important mischaracterization of the evidence. Therefore, there was nothing unreasonable about the Board of Review’s findings that Boyce’s illness was caused by cigarette smoking. Two justices dissented from the opinion, but they did not offer a separate dissenting opinion of their own.
The Wolfe Law Firm has been providing legal services for nearly 25 years. Located in Elkins, West Virginia, the firm provides services in the areas of personal injury, criminal defense, bankruptcy, and mediation. If you are looking for an experienced West Virginia personal injury attorney, contact us today.