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VIRGINIA 062995 IN THE WORKERS COMPENSATION COMMISSION

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VIRGINIA 062995 IN THE WORKERS COMPENSATION COMMISSION Powered By Docstoc
					   VIRGINIA:                                                06/29/95
   IN THE WORKERS' COMPENSATION COMMISSION

Affirmed in Part, REVERSED in Part by the Court of Appeals at
      Record No. 1657-95-2 (April 30, 1996)(unpublished)

   LEWIS A. WEIS, Claimant

                                                           Opinion by
                                                      FULL COMMISSION


   v.        VWC File No. 161-49-83




   NATKIN & COMPANY, Employer
   TRAVERLERS INSURANCE COMPANY, Insurer

   and

   STEWART MECHANICAL ENTERPRISES, Employer
   STANDARD FIRE INSURANCE COMPANY, Insurer

   and

   BABCOCK & WILCOX, Employer
   TRAVELERS INDEMNITY COMPANY OF ILLINOIS, Insurer

   and

   STONE & WEBSTER, Employer
   CONTINENTAL CASUALTY COMPANY, Insurer

   and

   UNITED ENGINEERS & CONSTRUCTORS, INC., Employer
   NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Insurer

   and

   THE RUST ENGINEERING COMPANY, Employer
   STANDARD FIRE INSURANCE COMPANY, Insurer

   and

   LUMMUS CONSTRUCTION, Employer
   TRANSPORTATION INSURANCE COMPANY, Insurer
and

HENKLES & MCCOY, INC., Employer
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Insurer
                                              VWC File No. 161-49-83


and

TIDEWATER CONSTRUCTION CORPORATION, Employer
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Insurer

and

AUGUST WINTER & SONS, INC., Employer
SENTRY INSURANCE, A MUTUAL COMPANY, Insurer

and

CATALYTIC, INC., Employer
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Insurer


Edmund R. Richie, Esquire
P. O. Box 298
Charlottesville, VA 22902-0298
FOR THE CLAIMANT.

John M. Oakey, Jr., Esquire
One James Center
901 East Cary Street
Richmond, VA 23219-4030
FOR STEWART MECHANICCAL ENTERPRISES, INC. and
STANDARD FIRE INSURANCE COMPANY.

Ralph L. Whitt, Esquire
P. O. Box 1998
Richmond, VA 23216
FOR UNITED ENGINEERS & CONSTRUCTORS, INC. and
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH

John M. Oakey, Jr., Esquire
One James Center
901 East Cary Street
Richmond, VA 23219-4030
FOR THE RUST ENGINEERING COMPANY and
STANDARD FIRE INSURANCE COMPANY

Mary Louise Kramer, Esquire
P. O. Box 1998
Richmond, VA 23216
FOR HENKLES & MCCOY, INC. and
LIBERTY MUTUAL FIRE INSURANCE COMPANY
                                                          VWC File No. 161-49-83



R. Ferrell Newman, Esquire
P. O. Box 6357
Richmond, VA 23230
FOR TIDEWATER CONSTRUCTION CORPORATION and
LIBERTY MUTUAL FIRE INSURANCE COMPANY

Steven H. Theisen, Esquire
100 West Franklin Street
Suite 300
Richmond, VA 23220
FOR AUGUST WINTER & SONS, INC. and
SENTRY INSURANCE, A MUTUAL COMPANY

Ralph L. Whitt, Esquire
P. O. Box 1998
Richmond, VA 23216
FOR CATALYTIC, INC. and
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH


        REVIEW      on    the     record      before      Commissioner     Joyner,

Commissioner Tarr          and    Deputy     Commissioner      Cummins     Doan    at

Richmond, Virginia.

        This     case comes before the Commission at the request of the

claimant       seeking Review of      the January 24, 1995        Opinion of the

Deputy     Commissioner finding        that     he failed     to establish     last

injurious        exposure with     any of     the named     employers.     For the

reasons stated below,           we agree     with the finding     of the     Deputy

Commissioner.

        From December 1980 to April 1982,              the claimant was employed

by   Rust Engineering at the          West Point Paper        Mill, making "tie-

ins".     To     do so,   he had to    cut through        old insulation on       the

pipes,     causing asbestos dust           in the air.      He estimates that he
was exposed to asbestos during one year of this employment.

     In   December 1982,   he   worked   a total   of   22   shifts   for
                                                                      VWC File No. 161-49-83


Tidewater       Construction, working               approximately 171.5 hours.                  He

worked       in purely a     supervisory capacity as                     general foreman for

the    company.        He did     nothing more             than mark          the pipes      to be

removed for the "tie-ins", marking them with a pen or marker.                                   He

also     supervised the         pipe fabrication.                 However,        there was     no

evidence that         the claimant was              exposed to asbestos             during this

employment.

       He     was employed       for     a period          of     two months        in     1982 at

Henkels & McCoy         at the Getty Oil             Company.          He could         not recall

any exposure to asbestos during this period of employment.

       The     claimant was       also employed             by Lummus           Construction in

1982 and 1983.         However, he           offered no evidence as to the length

of this employment.          Moreover, he merely stated that "there could

have been" asbestos products at that location.

       During a three-month period in 1983, the claimant worked for

Catalytic       Incorporated.           As     to    the        extent     of     his     asbestos

exposure,       the     claimant's           testimony          was    inconsistent.            In

deposition testimony,            he maintained             that he        was     unsure as     to

whether       he was exposed to          asbestos.          In     contrast, he stated in

hearing       testimony    that        he did        not    think        he     was exposed     to

asbestos during this employment.

       In     July 1983,     he was          employed       by     August Winter &           Sons,

installing       fiberglass insulation.                    By his        own admission,        his

exposure to asbestos was               minimal.       This occurred only                 when non-
asbestos materials were dragged across pipes, creating dust.

                                4
                                                                   VWC File No. 161-49-83


        The     claimant        worked        for one     day     at     the     ICI Plant     for

Natkin & Co. in 1983.               He was involved in cutting out                       a portion

of the lines           to do the "tie-ins" on the steam                      lines.      There was

asbestos        on each     side        of     the    lines.           The     welding     process

generated dust.

        He     also worked        for        Natkin & Co.        at Anheuser-Busch           doing

"tie-ins"        on     stainless        steel       beer lines         from     April     through

July 1984.            He also had occasion              to be in the           area where other

employees were cutting the                    steam lines that did have               asbestos.

When     asked        whether he        was     exposed to        asbestos,        the claimant

stated        that the     stainless steel              lines     did not        have asbestos.

However, he added that "its a possibility" that he was exposed to

asbestos when other workers were cutting the steam lines.

        The claimant did not                 offer any evidence as to              the duration

of employment           with Stewart Mechanical                 Enterprises.        Nor     did he

establish any           asbestos exposure             occasioned by this            employment.

As     to the other named employers, the                    claimant did not offer any

evidence concerning the dates of his employment or whether he was

exposed to asbestos during this employment.

        The claimant carries the burden of proving that his exposure

to     asbestos was        reasonably calculated                 to trigger        the disease.

Caudle-Hyatt,           Inc. v. Mixon, 220 Va. 495, 260 S.E.2d 193 (1979).

In     the     absence     of     90 work-shifts           of     asbestos        contact,     the

claimant has not carried                 his burden of proving the                 duration and
intensity of exposure necessary to establish "injurious exposure"

                                5
                                                       VWC File No. 161-49-83


under the Act.      The fact that       he was present on these job sites,

without evidence      of    intense     or   harmful    exposure,     is     not    a

sufficient basis for finding injurious exposure.              Stoots v. Great

Barrier Insulation Co., et al., 71 OIC 179 (1992).

       The claimant has not established            that his exposure, if any,

was of such intensity or duration as to be harmful.                 His exposure

was, at best, minimal.         With some employments, the           claimant was

only     able to   speculate on       whether he     was exposed     to asbestos

products.      While he worked        on sites where     asbestos was handled

during     the period from 1980        to 1984, he     cannot demonstrate any

extended or intense exposure           to asbestos on any of        these sites.

Therefore,     we hold     that the     evidence fails     to establish          last

injurious exposure with any of the named employers.

       Accordingly, we      AFFIRM the January 24, 1995        Opinion of the

Deputy Commissioner.

       The case is ordered removed from the Review Docket.


                                      APPEAL

       This Opinion shall be final unless appealed to                      the
       Virginia Court of Appeals within thirty days.


cc:    Lewis A. Weis
       P. O. Box 305
       Quinton, Virginia 23141

       Natkin & Company
       P. O. Box 1258
       Englewood, Colorado 80150
Travelers Insurance Company
P. O. Box 85554

                              6
                                        VWC File No. 161-49-83


Richmond, Virginia 23285




Stewart Mechanical Enterprises, Inc.
757 Grade Lane
Louisville, Kentucky 40213

Standard Fire Insurance Company
P. O. Box 10137
Fairfax,, Virginia22030

Babcock & Wilcox
P. O. Box 61036
New Orleans, Louisiana 70161

Travelers Insurance Company
P. O. Box 85554
Richmond, Virginia 23285

Stone & Webster
P. O. Box 2325
Boston, Massachusetts 02107

United Engineers & Constructors, Inc.
30 South 17th Street
Philadelphia, Pennsylvania 19101

National Union Fire Insurance Company
of Pittsburgh
American International Adjustment Company, Inc.
P. O. Box 35066
Richmond, Virginia 23235

The Rust Engineering Company
100 Corporate Parkwat
Birmingham, Alabama 35242

Standard Fire Insurance Company
P. O. Box 10137
Fairfax, Virginia 22030

Lummus Construction
1515 Broad Street
Bloomfield, New Jersey 07003
Transportation Insurance Company
P. O. Box K-201

                           7
                                        VWC File No. 161-49-83


Richmond, Virginia 23288

Henkles & McCoy, Inc.
985 Jolly Road
Bluebell, Pennsylvania 19422


Liberty Mutual Fire Insurance Company
P. O. Box 85059
Richmond, Virginia 23261

Tidewater Construction Corporation
P. O. Box K-57
Norfolk, Virginia 23501

Liberty Mutual Fire Insurance Company
P. O. Box 85059
Richmond, Virginia 23261

August Winter & Sons, Inc.
P. O. Box 1896
Appleton, Wisconsin 54911

Sentry Insurance, A Mutual Company
1025 Boulders Parkway
Richmond, VA 23225

Catalytic, Inc.
1500 Market Street
Philadelphia, Pennsylvania 19102

National Union Fire Insurance Company
of Pittsburgh
American International Adjustment Company, Inc.
P. O. Box 35066
Richmond, VA 23235
8

				
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