Hudson v. State Workmen's Compensation Commissioner & Union Carbide Corp.

Per Curiam: In this appeal the claimant, Eufa M. Hudson, widow of Clinton D. Hudson, seeks reversal of an order entered by the Workmen’s Compensation Appeal Board on March 29, 1978. The Appeal Board’s order set aside an award of widow’s benefits to Mrs. Hudson on the ground that she had failed to establish a causal connection between her husband’s death and his exposure to noxious fumes while in the employ of Union Carbide Corporation. Mrs. Hudson filed her claim for widow’s benefits under the provisions of Chapter 23, Article 4, Section 10 of the West Virginia Code of 1931, as amended. That code section, as in effect at the time of the filing of the claim and as applicable in this case, provided in part: “[I]f death results [to an employee] from occupational pneumoconiosis or from any other occupational disease within ten years from the date of the last exposure to the hazards of occupational pneumoconiosis or to the other particular occupational hazard involved, as the case may be, the benefits shall be in the amounts and to the persons as follows: * * *” Clearly this statute requires that an employee’s death result from occupational pneumoconiosis or occupational disease as those terms are defined for the purposes of Chapter 23 of the Code. Code 23-4-1, the section which defines occupational pneumoconiosis and other occupational diseases, provides in part: [515] “For the purposes of this chapter, occupational disease means a disease incurred in the course of and resulting from employment ... Except in the case of occupational pneumoconiosis a disease shall be deemed to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances (1) that there is a direct causal connection between the conditions under which work is performed and the occupational disease, (2) * * *” This Code section, by its terms, defines “occupational disease” for all sections of Chapter 23 of the Code including Code 23-4-10, the section under which the claimant filed her claim. Obviously Code 23-4-1, and Code 23-4-10 relate to the same subject matter, and in accord with the rule expressed in Owens-Illinois Glass Co. v. Battle, State Tax Commissioner, 151 W. Va. 655, 154 S.E.2d 854 (1967), we conclude that they should be read in pari materia. In reading the two Code sections in pari materia the requirement of causal relationship between disease and employment which is established by Code 23-4-1, is carried into Code 23-4-10, and becomes one of the total definitional elements limiting the circumstances under which a dependent’s award may be paid under Code 23-4-10. For this reason our decisions on the definition of “occupational disease” under Code 23-4-1, are pertinent to a causal relationship issue raised under Code 23-4-10. In Bannister v. State Workmen’s Compensation Commissioner, 154 W. Va. 172, 174 S.E.2d 605 (1970), we ruled that occupational disease means a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside of employment shall be compensable unless it was proximately caused by the employment. In the case before us the claimant introduced a death certificate indicating that the cause of the decedent’s death was occupational pneumoconiosis. A subsequent [516] autopsy revealed no evidence of occupational pneumoco-niosis, but did reveal extensive evidence of other lung diseases. Although the claimant introduced evidence showing that her deceased husband had been exposed in his employment to fumes from over one hundred noxious chemicals, she adduced no medical or other evidence demonstrating that the chemicals to which he was exposed could have caused the lung conditions which the autopsy of his body revealed. In the Syllabus of Ratcliff v. State Compensation Commissioner, 146 W. Va. 920, 123 S.E.2d 829 (1962), we held in part: “Where an employee files his application for workmen’s compensation benefits, based on the occurrence of an occupational disease, other than silicosis, to entitle him to an award, he must establish that the disease was contracted in the course of and resulted from the employment; ...” This same rule applies to a widow’s benefits based on an employee’s death from occupational disease under W.Va. Code, 23-4-10. Here the Appeal Board concluded from the record that there was no evidence to connect the disease which caused the employee’s death, as being contracted in the course of and resulting from his employment. We have long recognized that: “In order to reverse a finding of fact by the Workmen’s Compensation Appeal Board it must appear from the proof upon which the board acted that the finding in question was plainly wrong.” Point 1, Syllabus, Vento v. State Compensation Commissioner, 130 W. Va. 577, 44 S.E.2d 626 (1947); Syllabus, Pennington v. State Workmen’s Compensation Commissioner, 154 W. Va. 378, 175 S.E.2d 440 (1970) The findings of the Appeal Board not being plainly wrong, we affirm its decision. Affirmed.