STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

November 18, 2013 

RORY L. PERRY II, CLERK 

BAYER CORPORATION, 

Employer Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 12-0243 (BOR Appeal No. 2046250) 

(Claim No. 2010101089) 

LUANN TONEY, WIDOW OF 

JOHN TONEY III (DECEASED), 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Bayer Corporation, by Timothy E. Huffman, its attorney, appeals the decision 

of the West Virginia Workers’ Compensation Board of Review. Luann Toney, by E. William 

Harvit, her attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 25, 2012, in 

which the Board affirmed a July 22, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s December 18, 

2009, decision rejecting Ms. Toney’s claim for dependents’ 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. Toney worked as a chemical operator for Bayer Corporation from November of 1986 

until April 23, 2008. Ms. Toney alleges that Mr. Toney was exposed to occupational asbestos, 

and it caused malignant mesothelioma, which led to his death in July of 2009. The claims 

administrator rejected Mr. Toney’s application for workers’ compensation benefits. The 

Occupational Pneumoconiosis Board concluded that Mr. Toney was exposed to occupational 

asbestos and that it could have caused his malignant mesothelioma. Dr. Lockey and Dr. 

Ranavaya found occupational asbestos exposure was not the cause of Mr. Toney’s malignant 

mesothelioma. 

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The Office of Judges reversed the claims administrator’s decision, and granted the claim 

for dependents’ benefits, and held that Mr. Toney contracted testicular mesothelioma as a result 

of his exposure to asbestos in his workplace and that it contributed in a material degree to his 

death. Bayer Corporation disagrees and asserts that the medical evidence of record fails to 

establish a direct link between Mr. Toney’s alleged intermittent exposure to asbestos and the 

testicular cancer, which resulted in his death. 

The Office of Judges concluded by a preponderance of the evidence that Mr. Toney was 

exposed to asbestos at work, and that his contact with asbestos was not infrequent nor merely 

occasional. The Office of Judges based its conclusions upon Mr. Toney’s and Mr. Stone’s 

depositions that Mr. Toney beat insulation out of pipes on a regular basis to fix a pipe leak and 

scraped materials out of gaskets. Mr. Wey, a health, safety, and environment representative for 

the employer during 2002 to 2010, stated that Mr. Toney’s job responsibilities would not have 

required him to work directly with asbestos, even though asbestos materials could have been 

present in the workplace. The Office of Judges determined that Mr. Wey’s opinion was not 

persuasive since he failed to conduct a formal assessment, and only reviewed Mr. Toney’s job 

description and inquired if Mr. Toney had ever reported asbestos exposure. The Office of Judges 

relied on the Occupational Pneumoconiosis Board’s conclusions that Mr. Toney’s exposure 

outside of work was minimal and that his work-related exposure was much greater. 

The Office of Judges relied on the Occupational Pneumoconiosis Board’s conclusions. 

The Occupational Pneumoconiosis Board found that Mr. Toney’s only risk factor for developing 

malignant mesothelioma was his exposure to asbestos. The Office of Judges found the 

Occupational Pneumoconiosis Board’s testimony provided an explanation of how testicular 

mesothelioma can be developed from asbestos exposure. The Office of Judges noted that Dr. 

Lockey and Dr. Ranavaya opined that asbestos exposure was not the cause of the malignant 

mesothelioma, but were unable to provide an alternative cause of Mr. Toney’s disease. The 

Office of Judges held that Mr. Toney contracted testicular mesothelioma as a result of his 

exposure to asbestos in his workplace, and that it contributed in a material degree to his death. 

The Board of Review reached the same reasoned conclusions in its decision of January 25, 2012. 

We agree with the reasoning and conclusions of the Board of Review. 

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. 

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ISSUED: November 18, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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