Linda Murphy, Dependent of Harold R. Murphy (Deceased) v. St. Gobain Ceramics & Plastics, Inc., and West Virginia Offices of the Insurance Commissioner in its capacity as administrator of The Old Fund

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

LINDA MURPHY, DEPENDENT OF HAROLD R. MURPHY (DECEASED),
Claimant Below, Petitioner
FILED
v.) No. 23-ICA-447 (JCN: 2020023988) June 5, 2024
ASHLEY N. DEEM, DEPUTY CLERK

ST. GOBAIN CERAMICS & PLASTICS, INC., INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
Employer Below, Respondent

and

WEST VIRGINIA OFFICES OF THE INSURANCE COMMISSIONER IN ITS
CAPACITY AS ADMINISTRATOR OF THE OLD FUND,
Respondent

MEMORANDUM DECISION

Petitioner, Linda Murphy, widow of Harold Murphy, appeals from the September
11, 2023, Order of the Workers’ Compensation Board of Review (“Board”), which
affirmed the Claim Administrator’s May 20, 2021, decision denying dependents’ benefits.
Respondent, the West Virginia Offices of the Insurance Commissioner acting in its
capacity as administrator of the Old Fund, timely filed a response.1 Respondent St. Gobain
Ceramics & Plastics, Inc. did not participate on appeal. Petitioner did not file a reply. The
issues raised on appeal relate to a ruling that Mrs. Murphy was not entitled to dependents’
benefits because her husband’s death was not caused or contributed to in any material
degree by occupational exposure to asbestos.2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ oral and written arguments, the record on

1
Linda Murphy is represented by John H. Skaggs, Esq. The West Virginia Offices
of the Insurance Commissioner is represented by Karin L. Weingart, Esq.
2
Petitioner’s brief declares at page two that the issue on appeal is whether Mr.
Murphy’s “fibrosis was caused or contributed to in any material degree by his exposure to
asbestos and silica” but neither the brief nor the petitioner during oral argument developed
the argument that silica was a contributing factor to Mr. Murphy’s death. Consequently,
we do not address this potential issue on appeal.

1
appeal, and the applicable law, this Court finds that there is no error in the decision, and
no substantial question of law. Therefore, this case satisfies the “limited circumstances”
requirement of Rule 21(c) of the Rules of Appellate Procedure. For the reasons stated
below, the order is affirmed.

Petitioner’s husband, the late Harold Murphy, was employed in various capacities
at a refractory brick plant in Buckhannon, West Virginia, from 1968 until July 31, 1998.
Over the years, this facility was owned and operated by various entities, including West
Virginia Glass, Corhart Refractories, Corning Glass, and eventually St. Gobain Ceramics
& Plastics, Inc. It manufactured two lines of products, asbestos clad refractory brick and
silica based “glass blocks.” Asbestos was last used at the brick plant in the early 1980s.
Mr. Murphy completed a Complaint Summary Form alleging that he had been exposed to
insulation, asbestos board, chrome oxide, glass dust, zircon, black chrome dust,
magnesium, graphite, and silica while working at the plant.

Mr. Murphy died on January 5, 2020. According to his death certificate, he died
from “respiratory failure,” with “chronic obstructive pulmonary disease” and
“occupational lung disease” as secondary causes. His autopsy report dated March 3, 2020,
indicated findings of biventricular heart failure and severe chronic hypoxic respiratory
failure with severe honeycombing in all lung lobes. Further, there was evidence of
interstitial lung disease with patchy anthracosis and silicosis (suggesting possible exposure
to silicates and dust as a contributing factor for the interstitial lung disease) and evidence
of pulmonary hypertension. The autopsy revealed a pleural plaque,3 but no definitive
ferruginous bodies or asbestos fibers were identified microscopically. No evidence of
mesothelioma or any other malignancy was found.

On March 1, 2020, Linda Murphy, the decedent’s wife, completed an application
for Fatal Dependents’ Benefits. Her claim was afforded the non-medical presumption set
forth under West Virginia Code § 23-4-8c(b) (2009).4 On March 18, 2021, however, the

3
Fibrous plaque was also found in the pericardium. According to the autopsy report,
pleural and pericardial plaques, “although non-specific, have been associated with asbestos
exposure.”
4
West Virginia Code 23-4-8c(b) provides:

If it can be shown that the claimant or deceased employee has
been exposed to the hazard of inhaling minute particles of dust
in the course of and resulting from his or her employment for
a period of ten years during the fifteen years immediately
preceding the date of his or her last exposure to such hazard
and that the claimant or deceased employee has sustained a
chronic respiratory disability, it shall be presumed that the

2
Occupational Pneumoconiosis Board (“OP Board”) issued a report finding that
occupational pneumoconiosis was not a material contributing factor in the decedent’s death
based on a review of the decedent’s medical records. The OP Board’s radiologist reviewed
diagnostic imaging and reported:

Honeycombing noted diffusely right lung with less severe changes in the left
lung, more remarkable left lower lobe. No parenchymal nodules identified.
No pleural plaque formation or pleural calcifications noted.... Honeycombing
is a non-specific finding, in the absence of pleural plaques, this is most likely
idiopathic pulmonary fibrosis, differential remains broad for the end stage
pulmonary findings, however. Again, no radiographic findings to suggest
coal workers’ pneumoconiosis or pleural plaques which [] would [be]
expect[ed] to be present, present if the pulmonary findings represented
asbestosis.

By order dated May 20, 2021, the claim administrator denied dependents’ benefits
based upon the finding of the OP Board that occupational pneumoconiosis did not cause
or materially contribute to Mr. Murphy’s death. Mrs. Murphy appealed the order to the
Board.

Petitioner’s expert, Ronald E. Gordon, Ph.D., reviewed the decedent’s medical
records and drafted a report dated April 1, 2022. Dr. Gordon is a Professor and Director of
Electron Microscopy in the Department of Pathology at the Mt. Sinai School of Medicine
and Director of the Analytic Asbestos Analysis Laboratory at the Mt. Sinai Health System.
Dr. Gordon found the presence of chrysotile and amphibole type asbestos fibers in the lung
tissue in concentrations of 2,509 fibers per gram wet weight. All but one of these fibers
were attributed to amphibole type asbestos fibers. Dr. Gordon opined that the decedent had
a mixed occupational asbestos exposure documented by the fiber burden of chrysotile and
amphibole asbestos fibers (crocidolite, amosite, and tremolite). Dr. Gordon further opined,
based on his “finding of significant amounts of commercial asbestos at occupational levels
and types of asbestos fiber burden,” that the asbestos was a causal factor for the decedent’s
severe asbestosis with honeycombing and pleural plaques, and that this severe asbestosis
caused the decedent’s right heart to enlarge and develop right heart failure.5 He also noted

claimant is suffering or the deceased employee was suffering
at the time of his or her death from occupational
pneumoconiosis which arose out of and in the course of his or
her employment. This presumption is not conclusive.
5
Although Dr. Gordon referred to “occupational levels” of commercial asbestos, he
did not identify any studies establishing occupational levels for commercial asbestos.

3
that “silica particles were evident in an amount that demonstrates occupational exposure to
silica.”

On December 27, 2022, following his review of the decedent’s medical records and
his own examination of lung tissue, the respondent’s expert, Robert H. Swedarsky, M.D.,
issued a report. Dr. Swedarsky also reviewed Dr. Gordon’s report and found that it did not
meet the 2010 guidelines established by the Asbestos Committee of the College of
American Pathologists and the Pulmonary Pathology Society for the histological diagnosis
of asbestosis.6 These criteria require an acceptable pattern of alveolar fibrosis coupled with
at least 2 asbestos bodies per square centimeter of lung tissue. When no or few asbestos
bodies are present, asbestos fiber burdens may be considered as a marker of asbestos
exposure if they are sufficiently numerous. Pleural plaques may also provide evidence of
asbestos exposure, especially if they are numerous, bilateral, and calcified.

According to Dr. Swedarsky, his examination of Mr. Murphy’s lung tissue found
non-specific honeycombing and no asbestos bodies. Thus, the commonly accepted criteria
for a histologic diagnosis of asbestosis were not met, thereby limiting the value of Dr.
Gordon’s report. As for the 2,509 asbestos fibers per gram found by Dr. Gordon, Dr.
Swedarsky opined that this fiber burden was much lower than he would expect to find in
someone with asbestosis. 7 Therefore, these fibers most likely represented non-industrial
ambient exposure and did not support a diagnosis of occupational disease. Dr. Swedarsky
noted that the decedent’s comorbid conditions, including reflux disease with aspiration,
pulmonary emboli, congestive heart failure, episodes of pneumonia, and gout could
contribute to honeycomb lung. Dr. Swedarsky observed that Dr. Gordon’s report did “not
include background population control ranges, the laboratory’s control ranges for known
asbestosis cases, [and that] dried to wet ratios [were] not reported.” Dr. Swedarsky further
opined that deposits of black pigment and birefringent particles in Mr. Murphy’s lung
tissue were consistent with exposure to silica but insufficient to diagnose mixed dust
pneumoconiosis.

On February 2, 2023, Dr. Gordon authored an affidavit reviewing the report of Dr.
Swedarsky. Dr. Gordon stated that the presence of crocidolite and amosite fibers, and the
level of fibers other than chrysotile, indicated that the decedent had occupational exposure

6
Victor L. Roggli, et al., Pathology of Asbestosis—An Update of the Diagnostic
Criteria: Report of the Asbestosis Committee of the College of American Pathologists and
Pulmonary Pathology Society,134(3) Arch. Pathol. & Lab. Med. 462-80 (March 2010).
7
Dr. Swedarsky stated that he would expect fiber levels of at least one million fibers
per gram dry weight. He did not indicate what this would convert to in terms of wet weight,
but Dr. Kinder stated that this would be roughly 100,000 thousand fibers per gram wet
weight.

4
to commercial fibers. Dr. Gordon indicated that his own analysis was consistent with and
complied with the commonly accepted principles of fiber burden analysis. Further, Dr.
Gordon described the half-life of various types of asbestos fibers and stated that over time,
the fibers may be digested by lung tissue, leaving behind damage to the lung. According to
Dr. Gordon, “[b]ased on the history of Mr. Murphy he may very well have had exposure
of millions of fibers that are no longer present in his lungs.”

Dr. Gordon was critical of the studies Dr. Sewardsky cited concerning fiber burdens
associated with asbestosis, largely because many of them allegedly did not involve
populations where asbestos exposure had ended many years before testing and analysis.8
He also opined that the studies Dr. Swedarsky referred to had not been properly controlled
“for confounding factors of non-occupational or uncharacterized exposures.” 9 It was Dr.
Gordon’s opinion that Dr. Swedarsky failed to account for the half-life of chrysotile fibers
found in Mr. Murphy’s lung tissue. Additionally, Dr. Gordon opined that Dr. Swedarsky
ignored the fact that the dose of particles necessary to cause a fibrotic response varies from
one patient to another. Dr. Gordon posited that the types of asbestos fibers found in Mr.
Murphy’s lung tissue established that there was occupational exposure, which was not
acquired from the general environment, and that the fibers were of the type well known to
damage lung tissue, resulting in fibrosis. According to Dr. Gordon, “crocidolite and
amosite are purely occupational or industrial exposures and not ambient.”

Three members of the OP Board testified at a hearing on June 28, 2023. Johnsey
Leef, Jr., M.D., a radiologist for the OP Board, testified that he reviewed several CT scans,
the most recent being dated December 28, 2019. This CT revealed a diffuse fibrotic process
throughout the decedent’s lungs with honeycombing. Dr. Leef testified that the fibrosis
pattern was indicative of idiopathic pulmonary fibrosis and that he saw no evidence of
pleural plaques or calcified pleural plaques to suggest any kind of asbestos exposure. Dr.
Leef opined that the fibrosis that he observed on the CT scan did not have the classic
pathognomonic pattern for asbestos.

8
According to Dr. Gordon, “[t]he studies cited by Dr. Swedarsky have numerous
issues which prevent them from being reliable in reviewing this case. These include the
relatively short time between the last exposure and analysis in many of the studies, different
exposure histories in the study cases and Mr. Murphy, and changes in techniques over the
years.”
9
Dr. Gordon stated in his affidavit that his background studies had been “published
a number of times,” and that they had controlled for confounding factors, but he did not
cite these studies, indicate when, where, or by whom they had been published, or whether
they had been peer reviewed. He also did not state what background levels they had
reported.

5
Jack Kinder, M.D., the chairman of the OP Board, testified that the decedent had a
history of occupational exposure to dust at a glass company from February 1969 to January
1985, when Corhart took over the factory and dust exposure decreased. Dr. Kinder noted
that in May 2008, the decedent developed breathing problems and underwent a CT scan,
at which time he was found to have fibrosis in both lungs. Dr. Kinder also noted that in
February 2012, the decedent was found to have an old pulmonary embolus and a nodule.
Dr. Kinder noted that Dr. Swedarsky did not feel there was enough occupational exposure
for the decedent to have asbestosis and agreed that the decedent’s pulmonary fibrosis was
likely not related to occupational exposure. 10

Dr. Kinder agreed with Dr. Leef that the decedent’s CT scans showed no signs of
occupational exposure, and he was, therefore, unable to make a connection between the
decedent’s pulmonary fibrosis and his occupational exposure. Dr. Kinder testified
extensively about Dr. Gordon’s methodology and the interplay of the half-life of the fibers
versus the number of fibers that remained in Mr. Murphy’s lung tissue. Dr. Kinder
recognized that it would be desirable to have studies showing current background levels
for asbestos fibers, and studies relating asbestosis to fiber burdens in populations where
exposure had ended many years ago, but he was unaware of any such studies, and the OPB
had to make its decision based on currently available data. Ultimately, Dr. Kinder remained
of the opinion that Mr. Murphy’s lung fibrosis was not connected to his occupational
exposure. Thus, Dr. Kinder testified that he did not believe that the decedent’s occupational
exposure materially contributed to his death. Dr. Kinder opined that the decedent suffered
from idiopathic pulmonary fibrosis, which was not caused by his occupational exposure.
A third member of the OP Board, Dr. Mallinath Kayi, concurred with the opinions and
conclusions of Dr. Kinder.

On September 11, 2023, the Board affirmed the claim administrator’s order denying
Mrs. Murphy’s application for dependents’ benefits, holding that the OP Board’s finding
that occupational pneumoconiosis did not play a material contributing role in the
decedent’s death was not clearly wrong. Mrs. Murphy now appeals the Board’s order.11

The standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further

10
Dr. Kinder agreed that Mr. Murphy’s fiber burden of amphibole asbestos resulted
from an occupational exposure to commercial asbestos but did not agree that this exposure
had materially contributed to Mr. Murphy’s lung disease.
11
Rule 19 oral argument was held on May 21, 2024.

6
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

This Court may not reverse the Board merely because it might have ruled differently.
See Ramaco Resources, Inc. v. Rollins, No. 19-1163, 2021 WL 5216712, at *8 (W. Va.
Nov. 9, 2021) (Hutchison, J., dissenting) (citing Bd. of Educ. of Cty. of Mercer v. Wirt,
192 W. Va. 568, 578-79, 453 S.E.2d 402, 412-13 (1994); see also Keaton v. W.Va. Off. of
Ins. Comm’r, No. 22-0060, 2023 WL 5978291, at *3 (W. Va. Sept. 14, 2023)
(memorandum decision) (“This Court may not reweigh the evidentiary record, but must
give deference to the findings, reasoning, and conclusions of the Board of Review…”). As
we observed in Kirkbride v. Ball Metal Food Container Corp., No. 23-ICA-146, 2023 WL
6290504, at *3 (W. Va. Ct. App. Sept. 26, 2023) (memorandum decision), “[o]ur review
is deferential to the Board.”

On appeal, Petitioner alleges three errors by the Board. According to her, it erred
when: (a) it found that she had not met her burden of proof to show that her husband had
died from occupational disease when she offered proof of her husband’s exposure to
asbestos and silica dust, and an expert opinion establishing a link between such exposure
and his death; (b) when it adopted the findings of the OP Board despite the Board relying
on out of date studies, and was unable to offer a definitive diagnosis of what had caused
her late husband’s extensive lung fibrosis; and (c) when it failed to properly apply the
holding of Powell v. State Workmen’s Compensation Comm’r, 166 W. Va. 327, 273 S.E.2d
832 (1980) that a claimant is not required to prove that the conditions of a worker’s
employment were the sole or exclusive cause of his injury or death. We will address each
of these arguments in turn.

Regarding the first assignment of error, although the claimant was entitled to a
rebuttable non-medical presumption that her husband suffered from occupational
pneumoconiosis, the Board found that the employer successfully rebutted that
presumption. Upon reviewing the record on appeal, we are unable to say that this ruling
was clearly wrong, arbitrary, capricious or characterized by an abuse of discretion.

7
Notwithstanding whatever rebuttable presumptions may apply, “the burden is upon
the claimant in workmen’s compensation proceedings to prove his claim,” and no
presumption “will relieve the claimant of that overall burden.” Meade v. State Comp.
Comm’r, 147 W. Va. 72, 79, 125 S.E.2d 771, 776 (1962).

A rule based on a presumption of fact becomes impotent
whenever the presumption is seasonably rebutted. A
presumption is rebutted when facts to the contrary are
established. …A rebuttable presumption is not evidence of a
fact but is purely a conclusion which has no probative force
and is designed only to sustain the burden of proof until
evidence is introduced which explains or overcomes it.

Id.12 In the case at bar, there was credible expert testimony that Mr. Murphy did not have
occupational pneumoconiosis, and that evidence was sufficient to overcome the statutory
presumption if accepted by the OP Board. Moreover, the OP Board and Board were not
clearly wrong when it came to weighing conflicting evidence concerning whether Mr.
Murphy suffered from occupational pneumoconiosis.

Petitioner argues that the statutory presumption is controlling and requires a finding
that the claimant is entitled to compensation whenever the OP Board is unable to make a
definitive diagnosis of what caused a lung injury or death. In reality, the presumption is
only controlling when it cannot be determined whether occupational exposure did or did
not cause a lung disease or death.

Regarding the second assignment of error, claimant argues that the Board erred in
adopting the findings of the OP Board because the employer’s expert relied on out-of-date
studies, and the Board was unable to make a definitive diagnosis of what caused her late

12
In construing a similar statutory presumption concerning occupational
pneumoconiosis, our sister state of Kentucky has instructed that:

The legislature has labeled the presumptions “rebuttable.” It is
therefore clear that the legislature intended the general rules
applicable to rebuttable presumptions to apply. Such
presumptions may only be indulged in so long as there is no
substantial evidence to the contrary. Once substantial evidence
to the contrary is offered, the presumptions disappear, and any
factual issues in dispute must be determined based on the
evidence adduced.

Wells v. Hamilton, 645 S.W.2d 353, 355 (Ky. 1983).

8
husband’s lung fibrosis. Although the claimant attacked the studies relied on by the
employer, she did not identify any other studies that were more reliable or up to date. The
challenges to the employer’s studies went to their weight, and it was up to the OP Board
and the Board to determine the weight of the evidence.

The Board agreed with the OP Board that Mr. Murphy’s fibrosis had a non-
occupational cause, idiopathic pulmonary fibrosis. It is true that the OP Board and the
Board were unable to make a definitive diagnosis of what caused the decedent’s lung
disease, but the OP Board was able to exclude occupational pneumoconiosis as a material
cause of death using commonly accepted criteria for diagnosing asbestosis.13 This was
sufficient to rule out occupational pneumoconiosis caused by asbestos exposure. We note
in this regard that West Virginia Code § 23-4-8c(c) requires the OP Board to determine
“[w]hether or not the claimant or the deceased employee has contracted occupational
pneumoconiosis;” it does not require the OPB to definitively determine what actually
caused the claimant’s or deceased employee’s injury or death if it was not caused by
occupational pneumoconiosis. On several occasions, the Supreme Court of Appeals of
West Virginia has upheld the Board when it denied dependents’ benefits for occupational
pneumoconiosis based on a diagnosis of idiopathic pulmonary fibrosis. See, e.g., Harper
v. W. Va. Off. Of Ins. Comm’r, No. 14-0470, 2015 WL 6181334 (W. Va. Oct. 14, 2015)
(memorandum decision); Buckley v. Donaldson Mine Co., No. 12-1101, 2014 WL 1316664
(W. Va. April 2, 2014) (memorandum decision); Woodall v. W. Va. Off. of Ins. Comm’r,
No. 11-0894, 2013 WL 1003491 (W. Va. March 14, 2013) (memorandum decision).

The Board’s ruling in this case was consistent with the findings by the OP Board,
the testimony of the OP Board members, and the report of the employer’s expert. Great
deference is given to findings by the OP Board because of its special expertise in
pulmonary disease, including pneumoconiosis, and its presumptively impartial nature. See
Fenton Art Glass Co. v. W. Va. Office of Ins. Comm’r, 222 W. Va. 420, 431, 664 S.E.2d
761, 772 (2008); Fridley v. Alpha Natural Resources, No. 17-0064, 2017 WL 4512420, at
*2 (W. Va. Oct. 10, 2017) (memorandum decision); and Hodge v. W. Va. Office of Ins.
Comm’r, No. 13-0850, 2014 WL 6802371, at * 2 (Dec. 2, 2014) (memorandum decision).

Turning to the third assignment of error, contrary to Petitioner’s argument, the
Board did not require the claimant to prove that occupational exposure to dust was the only
cause of Mr. Murphy’s death. Instead, it denied the claim because it found that such
exposure was not any material cause of his death.

Accordingly, we affirm the September 11, 2023, Order of the Board.

13
The claimant has not questioned whether appropriate diagnostic criteria were
applied in this matter.

9
Affirmed.

ISSUED: June 5, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

10