STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 4, 2015 

RORY L. PERRY II, CLERK 

VERNON MARCUM, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 15-0143	 (BOR Appeal No. 2049686) 

(Claim No. 2013004984) 

CONSTELLIUM ROLLED PRODUCTS RAVENSWOOD, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Vernon Marcum, by Edwin Pancake, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Constellium Rolled Products 

Ravenswood, by James Heslep, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 16, 2015, in 

which the Board reversed a July 23, 2014, Order of the Workers’ Compensation Office of 

Judges. The Board of Review reinstated a December 13, 2012, claims administrator’s decision 

finding that Mr. Marcum met the requirements for filing an occupational pneumoconiosis claim 

but modified the claims administrator’s decision to reflect that Mr. Marcum’s date of last 

exposure to the hazards of occupational pneumoconiosis was June 30, 1991. In its Order, the 

Office of Judges modified the claims administrator’s December 13, 2012, decision to reflect that 

Mr. Marcum’s date of last exposure to the hazards of occupational pneumoconiosis was August 

31, 1999. In its December 13, 2012, decision, the claims administrator determined that Mr. 

Marcum’s date of last exposure to the hazards of occupational pneumoconiosis was October 30, 

1990. The Court has carefully reviewed the records, written arguments, and appendices 

contained in the briefs, and the case is mature for consideration. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

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Mr. Marcum filed an application for workers’ compensation benefits alleging that he 

developed occupational pneumoconiosis as a result of exposure to occupational dust hazards in 

the course of his employment as a maintenance foreman with Constellium Rolled Products. Mr. 

Marcum was employed by Constellium Rolled Products from 1987 until his retirement on 

September 1, 1999. On December 13, 2012, the claims administrator held Mr. Marcum’s claim 

compensable for occupational pneumoconiosis after determining that he met the requirements for 

filing an occupational pneumoconiosis claim, that he was entitled to the benefit of the statutory 

presumption enumerated within West Virginia Code § 23-4-8c(b) (2009), and fixed Mr. 

Marcum’s date of last exposure to the hazards of occupational pneumoconiosis as October 30, 

1990. 

On August 13, 2013, Mr. Marcum was deposed. He testified that while employed as a 

maintenance foreman with Constellium Rolled Products, he was exposed to significant 

occupational dust hazards on a daily basis. Mr. Marcum further testified that he spent a large 

portion of his time in the “Hot Line” area of the plant, but went on to state that the nature of his 

employment frequently required him to move between various sections of the plant. 

On March 13, 2014, Mike Merrifield, a Certified Industrial Hygienist employed by 

Constellium Rolled Products, authored an affidavit. Mr. Merrifield’s affidavit covers the time 

period from October 31, 1990, through the date of Mr. Marcum’s retirement, namely September 

1, 1999. Mr. Merrifield noted that the nature of Mr. Marcum’s employment within the 

maintenance department required that he perform work in several different areas of the plant, and 

he therefore included an analysis of data obtained from the “Fabrication West”, “Hot Rolling”, 

“Scalping”, “Plate”, and maintenance departments. Mr. Merrifield stated that the Occupational 

Safety and Health Administration (hereinafter “OSHA”) performed a comprehensive inspection 

at Constellium Rolled Products from June of 1991 through October of 1991, with OSHA finding 

no evidence of occupational dust hazards associated with any of the departments referenced 

within the affidavit. Mr. Merrifield further stated that Constellium Rolled Products performs 

inspections and monitors dust and fiber levels using a standard National Institute for 

Occupational Safety and Health methodology under a well-documented chain of custody 

protocol. He stated that the principal of representative sampling, which is sanctioned and 

mandated by OSHA, was used to extrapolate data for the entire time period covered by the 

affidavit. Mr. Merrifield further stated that the sampling data revealed average concentrations of 

hazardous substances so far below recognized exposure limits for the substances in question that 

Mr. Marcum was not exposed to any abnormal, harmful, or hazardous quantities of dust or any 

other substance during the time period covered by the affidavit. Finally, Mr. Merrifield stated 

that based upon his investigation of the work environment in the departments referenced in the 

affidavit; the results of dust level sampling; and his own personal observations, experiences, and 

training as an industrial hygienist, Mr. Marcum was not exposed to any abnormal, excessive, or 

harmful quantities of dust or any other substance after October 30, 1990. 

In its Order modifying the December 13, 2012, claims administrator’s decision, the 

Office of Judges held that Mr. Marcum’s proper date of last exposure to the hazards of 

occupational pneumoconiosis is August 31, 1999. The Board of Review reversed the Order of 

the Office of Judges and reinstated the December 13, 2012, claims administrator’s decision but 

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modified Mr. Marcum’s date of last exposure to the hazards of occupational pneumoconiosis to 

June 30, 1991. On appeal, Mr. Marcum asserts that the evidence of record demonstrates that he 

was exposed to the hazards of occupational pneumoconiosis until his last date of employment 

prior to his retirement, namely August 31, 1999. 

The sole issue in the instant appeal concerns the identification of the proper date of Mr. 

Marcum’s last exposure to the hazards of occupational pneumoconiosis. West Virginia Code of 

State Rules § 85-20-52.2 (2006) states: 

If the employer submits credible evidence demonstrating that it has 

been in compliance with OSHA and/or MSHA permissible 

exposure levels, as determined by sampling and testing performed 

in compliance with OSHA and/or MSHA regulations for the dust 

alleged by the injured worker, then the Commission, Insurance 

Commissioner, private carrier or self-insured employer, whichever 

is applicable, may consider that the dust exposure alleged by the 

injured worker does not suffice to satisfy the exposure 

requirements of W. Va. Code §§23-4-1(b) and 23-4-15(b) only for 

the period(s) covered by the sampling or testing. In order for the 

evidence to be deemed credible, it must be based upon regularly 

scheduled exposure samples from each work area where harmful 

exposure has been alleged, which samples will be obtained by 

certified industrial hygienists as defined by OSHA and/or MSHA 

regulations or government agencies, and the samplings must be 

obtained during the period for which the employer is seeking to 

avoid chargeability. 

The Office of Judges noted that Mr. Marcum testified that he performed a large portion of 

work in the “Hot Line” area of the plant and therefore only considered the data from Mr. 

Merrifield’s affidavit obtained from that area of the plant. The Office of Judges concluded that 

the sampling data submitted in conjunction with Mr. Merrifield’s report is not extensive and 

specific enough to Mr. Marcum’s work area to meet the requirements contained within West 

Virginia Code of State Rules § 85-20-52.2. Further, the Office of Judges found that Mr. 

Marcum’s deposition testimony is sufficient to demonstrate that he was exposed to occupational 

dust hazards until the date of his retirement, and therefore determined that his proper date of last 

exposure is August 31, 1999. 

In its Order reversing the decision of the Office of Judges, the Board of Review took note 

of Mr. Merrifield’s conclusion that Mr. Marcum was not exposed to occupational dust hazards 

after October 30, 1990. However, the Board of Review found that Mr. Merrifield’s affidavit did 

not provide any information regarding Mr. Marcum’s exposure to occupational dust hazards 

from October 31, 1990, through June of 1991. The Board of Review then determined that when 

considering the evidentiary record and the principal of representative sampling, Constellium 

Rolled Products was in compliance with OSHA permissible exposure levels for respirable dust 

hazards from July 1, 1991, pursuant to the OSHA comprehensive inspection beginning in June of 

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1991, until Mr. Marcum’s retirement on September 1, 1999. The Board of Review then 

concluded that Mr. Marcum’s proper date of last exposure is June 30, 1991. 

We agree with the reasoning and conclusions set forth by the Board of Review. Although 

Mr. Marcum testified that he was exposed to the hazards of occupational pneumoconiosis until 

the date of his retirement, Mr. Merrifield’s affidavit establishes that Mr. Marcum was not 

exposed to the hazards of occupational pneumoconiosis throughout the entirety of his 

employment with Constellium Rolled Products. Mr. Merrifield’s affidavit establishes that air 

quality sampling was performed in compliance with all OSHA regulations and was conducted 

using a methodology approved by the National Institute for Occupational Safety and Health. The 

results of the sampling reveal that Mr. Marcum was not exposed to the hazards of occupational 

pneumoconiosis after June 30, 1991. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

Affirmed. 

ISSUED: November 4, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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