WIDOW OF A BOILERMAKER APPEALS WORKERS' COMP CASE

Publication: THE CHARLESTON GAZETTE
Published: 05/27/1999
Page: P2A
Headline: WIDOW OF A BOILERMAKER APPEALS WORKERS' COMP CASE FIVE HURT IN 3-VEHICLE CRASH
Byline: PAUL J. NYDEN, STAFF WRITER

The widow of a boilermaker who died from colon cancer hopes the Supreme Court requires the Workers' Compensation Fund to consider
recent medical studies showing breathing asbestos can cause that disease.

Frances Adams hopes to collect widow's benefits someday. For 34 years, her late husband Claude was exposed to asbestos, when he worked as a rigger and boilermaker at Union Carbide. Colon cancer claimed his life in November 1995, at 79.

Charleston lawyer E. William Harvit asked the Supreme Court to look at the case in October. His legal petition does not ask the court to
grant benefits immediately, but simply to require Workers' Compensation to consider recent medical studies.

In 1988, the Occupational Pneumoconiosis Board diagnosed Adams with pneumoconiosis and asbestosis. It granted him a 15 percent impairment award.

But when Adams died seven years later, the board ruled pneumoconiosis did not directly cause his death.

Five months after Claude's death, in March 1996, his widow Frances applied for dependent's benefits. She included additional information
from her husband's autopsy at Putnam General Hospital.

Dr. Dominic Gaziano, a Charleston pulmonary specialist, reviewed Adams' medical records and concluded his colon cancer was due, in
part, to exposure to asbestos on the job.

Gaziano stated there is "significant literature and opinion supporting the association of asbestos and colon cancer." A letter he sent to
Harvit listed 11 recent medical studies reaching that conclusion.

Gaziano also criticized a 1989 medical study cited by Union Carbide to disprove the relation between breathing asbestos and colon cancer.
Gaziano wrote that the authors of that study had a "significant conflict possibly affecting their objectivity."

In January 1998, three Occupational Pneumoconiosis Board doctors - James H. Walker, William C. Revercomb and Thomas M. Hayes - testified there was no association between asbestosis and colon cancer. They recommended rejecting the claim from Frances Adams.

But Workers' Compensation Administrative Law Judge Jim Gerchow sent the claim back to the agency for further review. His March 1998 order did not grant Frances Adams any benefits, but asked Workers' Compensation officials to review the studies Gaziano cited.

Union Carbide lawyers objected to the order, stating Gerchow "exceeded his authority" by asking the Workers' Compensation Fund to consider the additional studies.

Last September, the Workers' Compensation Appeal Board overruled Gerchow and dismissed the claim. Harvit then appealed to the Supreme Court.

In his dismissal order, Appeal Board Chairman R. Michael Shaw wrote that Adams "did not object to this claim being processed as an occupational pneumoconiosis claim At not time during the litigation did [Adams] ever request that this matter be considered an as occupational disease claim."

Harvit said Shaw issued the ruling because the Appeal Board "does not may not want to open the door to concluding colon cancer cases can be linked to asbestos cases."

Shaw said, "To the best of my knowledge, that argument was not made to us. We called him [Harvit] to reset the hearing, but he never got back to us. He can't really complain that we didn't treat him fairly."

Harvit said, "I did file a timely response. I asked them to schedule a time for me to respond. There was no hearing set. I never got an answer."

This week, Shaw said his board has "zero authority to reconsider a case. Once we enter an order, we cannot reconsider it."

Shaw said his inability to reopen a case is "a defect that needs to be considered next legislative session. We have a big volume of cases. We do the best we can."

Harvit said it is likely the Supreme Court will decide shortly on whether or not they will hear the appeal for Frances Adams.

To contact staff writer Paul J. Nyden, call 348-5164.