Publication: THE SUNDAY GAZETTE-MAIL
Published: 07/04/1999
Page: P4C
Headline: WORKERS' COMP IGNORES LETTERS, DELAYS BENEFITS DEADLY WAIT
Byline: PAUL J. NYDEN
SUNDAY GAZETTE-MAIL
Martin
Lee Byrd, exposed to asbestos fibers as a Union Carbide insulator for 35 years,
died from lung disease and mesothelioma earlier this year. But the state Workers'
Compensation Fund never granted him any additional disability or medical benefits
before he died.
Mesothelioma
is deadly. Breathing asbestos is its only known cause. Typically, once a person
is diagnosed, he lives only between seven and
15 months.
Byrd
lived two years after learning he had the disease in January 1997. A month
later, Charleston lawyer E. William Harvit filed an occupational disease claim
with the Workers' Compensation Fund.
Today
Harvit knows he can't do anything else to help Byrd, although he might secure
some additional benefits for Byrd's widow.
Last
week, Harvit said he hopes to use Byrd's example to convince the state Supreme
Court to make Workers' Compensation follow new rules to handle
mesothelioma claims.
"The
system encourages delay," Harvit said, "because a claimant like Byrd
must survive to receive medical and disability benefits."
The
lawyer plans to ask the court to automatically award permanent total disability
benefits to workers with mesothelioma.
Harvit
first wrote to Workers' Compensation Fund Commissioner William Vieweg on
Feb. 20, 1997, informing him that he would represent Byrd. As his lawyer, Harvit was entitled to
receive copies of all correspondence between Workers' Comp and
Byrd.
Harvit
enclosed a "Report of Occupational Injury" signed by Dr. S. Vasan,
who examined Byrd at St. Joseph Hospital in Parkersburg. Vasan
stated Byrd "developed mesothelioma from asbestos exposure."
Workers' Comp
officials never answered. They also ignored letters that Harvit sent in
May 1997, September 1997 and January 1998.
Only
after Harvit sent a fifth letter in February 1998 did the state agency finally
list him as Byrd's lawyer.
Meanwhile,
Workers' Comp asked Charleston physician Dominic Gaziano, a
nationally known lung disease specialist, to review Byrd's records.
The
agency did not send Gaziano a copy of Vasan's diagnosis. Gaziano said Byrd has
a lung cancer of "type unknown" and that he was "totally and
permanently disabled."
After
Gaziano received all the medical reports, he wrote a second report in May 1998
stating that Byrd "clearly has a mesothelioma. The
advanced stage of this incurable cancer makes him totally and permanently
disabled."
Harvit
also sent Workers' Compensation officials a February 1998 report from
Dr. Thomas Sporn and Dr. Victor Roggli of Duke University
Medical Center, who diagnosed Byrd with "malignant pleural mesothelioma."
But
Byrd never got to collect all of his benefits.
Gary
W. Nickerson, a Steptoe & Johnson lawyer in Clarksburg, represented Witco Corp., which recently
purchased Union Carbide's
Sistersville plant, assuming all its employee liabilities.
Nickerson
repeatedly asked for delays to gather more medical evidence about Byrd.
Chief Administrative Law Judge Robert Smith granted extensions in November
1997, January 1998, February 1998 and June 1998.
Nickerson
also repeatedly asked to take depositions about Byrd's condition in letters
sent to Workers' Compensation officials in
November and December 1998.
Nickerson
never submitted a single medical report about Byrd. The depositions never took
place.
Byrd
died Feb. 6.
"I
hope the court makes medical and disability benefits automatic when a
mesothelioma case is filed, and give employers a chance to prove it isn't mesothelioma," Harvit said.
"Or
we should change the law to allow the injured worker's family to collect
medical and disability benefits after he dies."
To
contact staff writer Paul J. Nyden, call 348-5164.