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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

STRUCTSURE SCAFFOLDING SOLUTIONS, LLC,

Employer Below, Petitioner

v.) No. 23-ICA-451 (JCN: 2022022469)

KENNETH ELDRIDGE,

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner StructSure Scaffolding Solutions, LLC (“StructSure”) appeals the 

September 13, 2023, order of the Workers’ Compensation Board of Review (“Board”).

Respondent Kenneth Eldridge timely filed a response.1 StructSure did not file a reply. The 

issue on appeal is whether the Board erred in reversing the claim administrator’s order, 

which had denied the claim, and holding the claim compensable. 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the Board’s order is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

As a bit of background, this case concerns a workers’ compensation claim that Mr. 

Eldridge filed following his alleged exposure to welding fumes at the John Amos Power 

Plant, which is owned and operated by American Electric Power. Mr. Eldridge was an 

employee of StructSure, a third party contracted to build scaffolding and temporary work 

platforms at the John Amos plant. At the same time, another third party had been contracted 

to perform welding in the same general vicinity in which Mr. Eldridge was building 

scaffolding. 

On March 25, 2022, Mr. Eldridge presented to Southern Ohio Medical Center 

(“SOMC”) Pulmonary and Critical Care with symptoms of respiratory distress and was 

admitted to the hospital.

2 Mr. Eldridge came under the care of Deanna Potter, CNP, who 

1 StructSure is represented by James W. Heslep, Esq. Mr. Eldridge is represented 

by Robert F. Vaughan, Esq. 

2 The parties state that Mr. Eldridge first sought treatment on March 21, 2022; 

however, there are no clinical notes in the record that are dated March 21, 2022.

FILED

March 25, 2024

C. CASEY FORBES, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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worked in the same office as Elie Saab, M.D. Clinical notes from SOMC Pulmonary and 

Critical Care dated March 28, 2022, indicate that Mr. Eldridge reported a work-related 

exposure to welding fumes. Specifically, Mr. Eldridge reported that he had inhaled fumes 

in a confined space and that the fumes were made up of a combination of Arcaloy 308L16 welding electrodes and stainless steel. The medical records indicate that a safety data 

sheet regarding the Arcaloy 308L-16 welding electrodes was obtained, and that the 

respiratory information section included significant respiratory irritation from short-term 

exposure.3

Mr. Eldridge reported that approximately thirty minutes following his exposure, he 

developed a headache with scalp sensitivity, dyspnea (which continued to progress 

significantly), one episode of vomiting, abdominal pain, and nausea. Mr. Eldridge stated 

that his nausea and abdominal pain had since resolved, but that he continued to experience 

difficulty breathing. Mr. Eldridge was diagnosed with acute respiratory failure with 

hypoxia.

On April 21, 2022, Mr. Eldridge had a follow up appointment at SOMC and 

continued to complain of shortness of breath on exertion and with talking, an occasional 

cough, and occasional wheezing. He was assessed with chemical pneumonitis, communityacquired pneumonia, and pneumonia.

On April 29, 2022, Kim Brown, the Safety and Compliance Administrator for 

StructSure, authored correspondence indicating her belief that Mr. Eldridge had not been 

exposed to high levels of fumes that would have contributed to Mr. Eldridge’s pneumonia. 

Ms. Brown stated that appropriate safety procedures and protocols were followed and 

claimed that Mr. Eldridge did not perform work in or near a regulated area in which any 

potential exposure could have occurred. She attached a timeline of events, supervisor 

statements, and documents pertaining to her investigation to the letter, which indicated that 

no other reports of smoke or fumes had been made and that welding was ceased when the 

scaffolding workers needed to make modifications.

3 This data sheet includes hazard statements indicating that Arcaloy 308L-16 

welding electrodes can cause damage to organs through prolonged or repeated exposure. 

Other precautionary statements indicate that one should not breathe the dust or fumes, and 

the toxicological information noted that:

welding fumes may result in discomfort such as: dizziness, nausea, or 

dryness or irritation of nose, throat, or eyes. Fumes can aggravate asthma, 

bronchial conditions, or allergies. Individuals with allergies or impaired 

respiratory function may have symptoms worsen by exposure to welding 

fumes. Excessive inhalation of iron oxides fumes or dust can lead to irritation 

of the respiratory tract. May cause allergic respiratory reaction.
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Mr. Eldridge returned to SOMC on June 9, 2022, and reported that his symptoms 

had slightly improved. He continued to complain of shortness of breath and wheezing. Mr. 

Eldridge was assessed with chemical pneumonitis and wheezing.

On June 21, 2022, Syam Stoll, M.D., performed a physician review and opined that 

chemical pneumonitis was not supported by the “limited current objective medical records” 

he was provided to review. Dr. Stoll based his opinion, in part, on the safety sheet, which 

he opined indicated that any acute inhalation would result in asthmatic or allergy-type 

symptoms and not pneumonia or sepsis, which are bacterial. He pointed out that chemical 

pneumonitis would not respond to antibiotics. Dr. Stoll also stated that the imaging studies 

did not support a diagnosis of chemical pneumonitis, which would have revealed extensive 

diffuse pulmonary edema. However, Mr. Eldridge’s CT scan revealed only moderate 

bilateral patch infiltrates consistent with pneumonia. Dr. Stoll reiterated that the objective 

medical evidence did not substantiate chemical pneumonitis but stated that if further 

objective medical documentation could be provided to substantiate the diagnosis, then 

causality and compensability may be reconsidered.

By order dated June 27, 2022, the claim administrate rejected the claim, finding that 

the disability complained of was not due to an injury or disease received in the course of 

and resulting from employment. Mr. Eldridge protested.

Mr. Eldridge continued to be treated by Ms. Potter and Dr. Saab at SOMC 

Pulmonary and Critical Care. On January 19, 2023, Dr. Saab examined Mr. Eldridge and 

opined that he had sustained chemical pneumonitis through occupational exposure. Dr. 

Saab subsequently authored correspondence on February 21, 2023, in which he disagreed 

with Dr. Stoll and indicated that Mr. Eldridge had suffered an occupational exposure 

resulting in an acute lung injury, secondary to Arcaloy 308L-16. Dr. Saab detailed Mr. 

Eldridge’s report of the exposure and how he was working on scaffolding near the bottom 

of a boiler. According to Dr. Saab, Mr. Eldridge reported that the area was smoky and that 

he developed a severe headache. Mr. Eldridge stated that, upon exiting the boiler, he 

encountered a welder in a fresh air supply mask who pointed at Mr. Eldridge to exit in 

another direction. Dr. Saab noted that Mr. Eldridge subsequently developed abdominal 

pain, nausea, and weakness.

Dr. Saab explained that Mr. Eldridge’s imaging studies did not support a diagnosis 

of pneumonia, but instead suggested that Mr. Eldridge’s exposure to fumes caused the 

injury. Also, Mr. Eldridge did not respond to antibiotics, which suggested chemical 

pneumonitis rather than bacterial pneumonia. Dr. Saab acknowledged that the diagnosis of 

community-acquired pneumonia had been included in the medical documentation but

described the diagnosis as a “wastebasket diagnosis.” Dr. Saab explained that when 

imaging studies show infiltrate in the chest, it is called pneumonia and that 50% of the time 

patients receive antibiotics because no pathogen has been identified. However, Dr. Saab 

stated that “one must correlate to the information given, including the history of the 
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presenting illness, [p]hysical exam, and labs and imaging.” Dr. Saab concluded, “In the 

spirit of scientific honesty, this patient never had community-acquired pneumonia. [Had 

he] not had an exposure, he probably would not have diffuse alveolitis.” 

In a report dated March 7, 2023, George Zaldivar, M.D., opined that the records did 

not support a claim of chemical exposure. Dr. Zaldivar opined that chemical pneumonitis 

could occur due to exposure to the particular welding rods used here and that Mr. Eldridge’s 

presentation was “certainly possible after fume inhalation.” However, Dr. Zaldivar stated 

that community-acquired pneumonia can also present in the same manner and that Mr. 

Eldridge’s white blood cell count was elevated when he presented to SOMC, which was 

indicative of an infection. Dr. Zaldivar also noted that StructSure’s documentation 

indicated that care was taken to prevent individuals who were not welding from being 

exposed to welding fumes and that Mr. Eldridge’s assertions to the contrary were not 

supported. Dr. Zaldivar opined that, “unless Mr. Eldridge can document that the protocol 

followed by his company was broken by him, specifically, or other workers building the 

scaffold, just as he was, the information provided in these records do not support a claim 

of chemical exposure.” 

Dr. Zaldivar authored an addendum to his report on May 4, 2023, in which he stated 

that he had since reviewed Mr. Eldridge’s abdominal and chest CT scans and a chest x-ray, 

which showed bilateral lower lobes pneumonia. Dr. Zaldivar stated that because the 

pneumonia was predominantly located in the lower lobes, he did not believe that Mr. 

Eldridge had sustained an inhalation injury.

By order dated September 13, 2023, the Board reversed the claim administrator’s 

order rejecting the claim and, instead, held the claim compensable for chemical 

pneumonitis. Initially, the Board found that there was an equal amount of evidentiary 

weight regarding exposure and, pursuant to West Virginia Code § 23-4-1g (2003), resolved 

that issue in favor of Mr. Eldridge.4 The Board went on to discuss the differences in the 

reports of Drs. Saab, Stoll, and Zaldivar and, ultimately, concluded that Dr. Saab’s report 

was the most credible and persuasive. The Board noted that Dr. Saab was the only 

physician to examine Mr. Eldridge. The Board also noted that Dr. Zaldivar admitted that 

“chemical pneumonitis could occur from inhalation of welding rod fumes and that 

chemical pneumonitis would have presented itself such as [Mr. Eldridge] presented.” 

Further, the Board found that Dr. Stoll opined that chemical pneumonitis does not respond 

to antibiotics, and Dr. Saab reported that Mr. Eldridge did not respond to antibiotics. The 

Board concluded that Mr. Eldridge “was exposed to welding rod fumes and that this 

4 W. Va. Code § 23-4-1g(a) (2003) provides, in part, that “[i]f, after weighing all of 

the evidence regarding an issue in which a claimant has an interest, there is a finding that 

an equal amount of evidentiary weight exists favoring conflicting matters for resolution, 

the resolution that is most consistent with the claimant’s position will be adopted.”
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isolated fortuitous event occurred in the course of and resulting from [Mr. Eldridge’s] 

employment.” StructSure now appeals.

Our 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 

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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App. 

2022).

On appeal, StructSure argues that Mr. Eldridge’s lung condition does not meet the 

standards of compensability for an occupational disease and, therefore, the Board’s order 

must be reversed. According to StructSure, Mr. Eldridge failed to submit sufficient 

evidence to establish the six factors for an occupational disease as set forth in West Virginia 

Code § 23-4-1(f) (2021) and, critically, failed to establish a causal connection between his 

alleged exposure to the welding fumes and his lung condition. StructSure contends that Mr. 

Eldridge’s allegations are the only evidence of any alleged exposure and that StructSure 

submitted evidence of ventilation at the jobsite to contradict Mr. Eldridge’s assertions. 

StructSure further argues that the medical evidence does not support an occupational 

exposure. For example, StructSure claims that Mr. Eldridge failed to allege any 

occupational exposure on initial treatment of his symptoms and was later diagnosed with 

community-acquired pneumonia, which is a disease of ordinary life to which all individuals 

are exposed on a regular basis. According to StructSure, further lending support to a 

diagnosis of community-acquired pneumonia were the reports of Drs. Stoll and Zaldivar, 

in which they opined that Mr. Eldridge did not have chemical pneumonitis. StructSure 

argues that Dr. Saab did not initially treat Mr. Eldridge but “assigned causation of [Mr. 

Eldridge’s] condition to chemical exposure [without] a thorough review of the initial 

clinical notes, imaging, and the employer’s report as to the ventilation of the jobsite.” 

StructSure claims that Dr. Zaldivar’s report is the most thorough in terms of his review of 
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the facts, diagnosis, and treatment, and that the Board should have relied on his opinion 

rather than Dr. Saab’s report.

Upon review, we find no clear error in the Board’s order reversing the claim 

administrator’s order and holding the claim compensable. In order for an injury to be held 

compensable under the Workers’ Compensation Act, three elements must coexist: (1) a

personal injury, (2) received in the course of employment, and (3) resulting from that 

employment. Jordan v. State Workmen’s Comp. Comm’r, 156 W. Va. 159, 163, 191 S.E.2d 

497, 500 (1972) (citation omitted). Said another way, “A claimant must establish 

compensability through competent evidence demonstrating that he or she suffers from a 

disability incurred in the course of and resulting from his or her employment and that there

is a causal connection between the disability and the employment.” Lambert v. Contura 

Energy, Inc., No. 21-0868, 2023 WL 5978198, at *4 (W. Va. Sept. 14, 2023) 

(memorandum decision) (citing Deverick v. State Comp. Dir., 150 W. Va. 145, 144 S.E.2d 

498 (1965)). However, “[w]hile ‘[a] claimant in a workmen’s compensation case must bear 

the burden of proving his claim [ ] in doing so it is not necessary to prove to the exclusion 

of all else the causal connection between the injury and the employment.’ Syl. Pt. 2, in part, 

Sowder v. State Workmen’s Compensation Comm’r, 155 W. Va. 889, 189 S.E.2d 674 

(1972).” Syl. Pt. 4, Dodson v. Workers’ Comp. Div., 210 W. Va. 636, 558 S.E.2d 635 

(2001).

At the outset, we note that StructSure attempts to characterize Mr. Eldridge’s 

diagnosis as an occupational disease rather than an occupational injury. We decline to 

analyze Mr. Eldridge’s claim as an occupational disease. The record is clear that the Board 

treated Mr. Eldridge’s claim as an occupational injury; StructSure fails to cite to the record 

demonstrating that it raised the issue of an occupational disease before the Board; and the 

record is sufficient to establish that Mr. Eldridge’s one-time exposure to the welding fumes 

satisfied the requirement for a definite, isolated, fortuitous event. See Syl. Pt. 3, Barnett v. 

State Workmen’s Comp. Comm’r, 153 W. Va. 796, 172 S.E.2d 698 (1970) (“‘A disability 

incurred by an employee in the course of his employment, not directly attributable to 

definite, isolated, fortuitous occurrence, is not compensable under the State Compensation 

Act.’ Syllabus, point 1, Adams v. G. C. Murphy Co., 115 W.Va. 122, 174 S.E. 794.”).

We conclude that sufficient evidence exists to support the Board’s conclusion that 

Mr. Eldridge sustained an occupational injury to his lungs. Mr. Eldridge’s testimony 

coupled with Dr. Saab’s report are sufficient to establish that Mr. Eldridge was exposed to 

welding fumes while working and that this exposure led to his developing chemical 

pneumonitis. Indeed, even Dr. Zaldivar, upon whom StructSure relies, admitted that 

chemical pneumonitis can result from inhalation of welding fumes and that Mr. Eldridge’s 

presentation of symptoms could result from inhalation of welding fumes. Although Dr. 

Zaldivar opined that StructSure’s documentation indicated that care was taken to prevent 

exposure, and StructSure points to its clean ventilation records, Mr. Eldridge was not 
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required “to prove to the exclusion of all else the causal connection between the injury and 

the employment.” Dodson, 210 W. Va. at 638, 558 S.E.2d at 637, syl. pt. 4.

Further, although Dr. Stoll opined that Mr. Eldridge developed community-acquired 

pneumonia, Dr. Saab rebutted this assertion. Dr. Saab specifically opined that Mr. Eldridge 

did not respond to antibiotics, which was indicative of chemical pneumonitis rather than 

pneumonia, and that imaging studies were likewise indicative of chemical pneumonitis 

rather than bacterial pneumonia. Moreover, Dr. Saab was the only physician who opined 

on the issue of causality to physically examine Mr. Eldridge. Ultimately, the Board found 

that Dr. Saab’s explanation of chemical pneumonitis was more persuasive. Given the 

evidence before us, we cannot find that the Board was clearly wrong in relying on Dr. 

Saab’s report. 

Accordingly, we affirm the Board’s September 13, 2023, order. 

Affirmed.

ISSUED: March 25, 2024

CONCURRED IN BY:

Judge Charles O. Lorensen

Judge Daniel W. Greear

Chief Judge Thomas E. Scarr, not participating