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Pioneer appeal denied by W.Va. high court

CHARLESTON, W.Va.,  — The West Virginia Supreme Court recently upheld a workers’ compensation decision that held Marietta-based Pioneer Pipe responsible for the hearing loss claim of a man who worked for the company for four days.

Justices acknowledge in the majority and concurring opinions of the 4-1 decision that the case reaches “an unfair result,” making Pioneer responsible for costs associated with an individual’s hearing loss developed over 33 years of working in noisy environments.

“The claimant worked mere hours for Pioneer  Pipe, yet it is saddled with the  entirety of  the charges resulting from his occupational hearing loss,” Justice Margaret Workman writes in the concurring opinion.

Justice Robin Davis cast the dissenting vote, arguing in her opinion that the decision denies Pioneer and future parties in similar cases their right to due process.

The employee, Stephen Swain, was a union heavy equipment operator for 33 years, working for a number of construction companies. His last work while exposed to occupational noise was for Pioneer Pipe, for a total of 40 hours, in March 2013 in the Nitro area.

An administrative law judge found Pioneer responsible for the costs in November 2014. The company appealed to the Workers’ Compensation Board of Review, which affirmed the decision in April 2015.

The majority’s decision is based on West Virginia Code 23-4-6b, which sets standards for awarding benefits in claims regarding occupational hearing loss. It says the Office of the Insurance Commissioner, which administers West Virginia’s workers comp system, “may allocate to and divide any charges resulting from the claim among the employers with whom the claimant sustained exposure to hazardous noise for as much as 60 days during the period of three years immediately preceding the date of last exposure.”

But the majority opinion notes the Insurance Commissioner’s office adopted a policy under which it would not allocate charges, saying “the benefit of allocating claims would be outweighed by the problems which would be created by attempting to allocate claims in West Virginia’s privatized workers’ compensation (insurance) market.” The practice of claims allocation is not used in many other states, the opinion says.

Justices in the majority say the statute clearly gives the Insurance Commissioner discretionary authority on whether to allocate the charges. In her dissent, Davis says the law lets the commissioner’s office determine whether to allocate costs or “make a fact-specific determination that only one employer will be held liable.” In addition, she says, the statute “clearly shows” that in order to be charged the employer must have exposed the worker to hazardous noise for as much as 60 days.

By not considering allocation, she says, “the Insurance Commissioner arbitrarily picks an employer from among those listed by the employee and imposes all charges on that employer,” while also denying the employer the opportunity to challenge the decision.

In her concurring opinion, Workman urges the Legislature and the Insurance Commissioner to review the statute and policy.

“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,” she says.

As a state workers’ compensation case, the West Virginia Supreme Court is the highest authority to which the decision can be appealed, said Lawrence Lowry, Swain’s attorney.

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