STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 7, 2013 

RORY L. PERRY II, CLERK 

GARY KEIFER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-1302	 (BOR Appeal No. 2045568) 

(Claim No. 2009080277) 

ALCAN ROLLED PRODUCTS – RAVENSWOOD, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Gary Keifer, by Edwin H. Pancake, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Alcan Rolled Products, by H. Toney 

Stroud, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 19, 2011, in 

which the Board reversed a January 25, 2011, Order of the Workers’ Compensation Office of 

Judges and reinstated the claims administrator’s June 8, 2009, decision. The claims administrator 

approved Mr. Keifer’s claim for occupational pneumoconiosis on a non-medical basis, but set 

the last exposure date as December 19, 2000. In its Order, the Office of Judges modified the 

claims administrator’s decision by establishing Mr. Keifer’s date of last exposure as February 19, 

2009, the date Mr. Keifer filed his application for occupational pneumoconiosis benefits. 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. 

Mr. Keifer began working as a millwright for Alcan Rolled Products at the Ravenswood, 

West Virginia plant in June of 1994. On December 20, 2000, Mr. Keifer began working in the 

fabrication maintenance department. Mr. Keifer claimed that from the beginning of his 

employment he was exposed to dust and airborne particles. On December 30, 2008, Mr. Keifer 

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was diagnosed with occupational pneumoconiosis and applied for benefits on February 19, 2009. 

On June 8, 2009, the claims administrator approved Mr. Keifer’s application for occupational 

pneumoconiosis on a non-medical basis and determined that he was entitled to the presumption 

found in West Virginia Code § 23-4-8c(b) (2009). The claims administrator’s decision stated that 

Mr. Keifer’s date of last exposure was December 19, 2000, excluding the period in which he 

worked in the fabrication maintenance department. On January 25, 2011, the Office of Judges 

modified the date of last exposure in the claims administrator’s decision to February 19, 2009, 

the date Mr. Keifer applied for occupational pneumoconiosis benefits. But the Board of Review, 

on August 19, 2011, reversed the Office of Judges and reinstated the claims administrator’s June 

8, 2009, decision, leading Mr. Keifer to appeal the Order. 

In modifying Mr. Keifer’s date of last exposure to February 19, 2009, the Office of 

Judges found that the employer had not met the standard set out in West Virginia Code of State 

Rules § 85-20-52.2 (2006). In the Office of Judges’ hearing, Alcan Rolled Products presented an 

affidavit of its industrial hygienist, Michael Merrifield. Mr. Merrifield’s affidavit stated that, 

based on his testing of the dust and airborne particles in the fabrication maintenance department, 

Mr. Keifer was not exposed to abnormal, excessive, or harmful quantities of dust after December 

20, 2000. Mr. Merrifield also stated that the areas where Mr. Keifer worked were in compliance 

with OSHA standards for permissive levels of particulate materials during that period. The 

Office of Judges found, however, that the affidavit of Mr. Merrifield was not credible because 

the last sample taken by Mr. Merrifield was in 2005. Since Mr. Merrifield had not taken tests 

from the entire period for which the employer was seeking to avoid chargeability, the Office of 

Judges found that the evidence did not meet the standard set out in West Virginia Code of State 

Rules § 85-20-52.2 and would not be sufficient to limit Alcan Rolled Products’ chargeability. 

The Board of Review reversed the Order of the Office of Judges. The Board of Review 

found that the affidavit of Mr. Merrifield was sufficient for Alcan Rolled Products to avoid 

chargeability for the period of December 20, 2000, through February 19, 2009, because the 

affidavit showed that the employer had been in compliance with OSHA standards for permissible 

exposure levels during the period. 

We agree with the conclusions of the Board of Review. Mr. Merrifield was a certified 

industrial hygienist who was employed to monitor the levels of dust and airborne particles in the 

Ravenswood, West Virginia plant. Mr. Merrifield’s affidavit detailed frequent and periodic 

testing of Mr. Keifer’s work area during the period for which Alcan Rolled Products seeks to 

avoid chargeability. Mr. Merrifield’s affidavit is credible, according to the standards set out in 

West Virginia Code of State Rules § 85-20-52.2, and it shows that the Ravenswood plant was in 

compliance with OSHA’s standards for permissive exposure levels during the relevant period. 

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. 

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Affirmed. 

ISSUED: November 7, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

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