Know How: WV Supreme Court Rules in Lung Cancer Exposure Claim Based on Asbestos Claim

by Kelly Little Guice, Member on April 10, 2013

On February 20, 2013, in the matter of Eloise Danko, Widow of George Danko v. West Virginia Office of Insurance Commission, et al., No. 11-0870, W.Va. App., 2013 W.Va. Lexis 153), the West Virginia Supreme Court of Appeals unanimously upheld the denial of workers’ compensation death benefits, finding that an individual must have asbestosis or physical evidence of exposure to asbestos to attribute occupational exposure to asbestos to lung cancer.  Eloise Danko filed for dependent's workers’ compensation benefits following the death of her husband, George Danko, claiming that her husband’s death from lung cancer was caused by his occupational exposure to asbestos while employed by Pechiney Rolled Products LLC.

In support of Mrs. Danko’s claim, reports were submitted in which the doctors opined that Mr. Danko's occupational exposure to asbestos was sufficient to have caused or contributed to his lung cancer.   However, opinions by other medical doctors stated that asbestos must be present to attribute lung cancer to occupational exposure.  And, because no asbestos fibers were found on autopsy, asbestos did not cause or contribute to Mr. Danko’s lung cancer.  Accordingly, the West Virginia Occupational Pneumoconiosis Board did not find any physical evidence of asbestos exposure and denied the claim.

On  appeal,  the  Office  of  Judges held  that  the  evidence   did  not  demonstrate   that occupational  pneumoconiosis played a material  contributing  role in  the death of  Mr. Danko.  The Occupational Pneumoconiosis Board's Chairman testified before the Office of Judges that asbestosis is necessary to attribute an individual’s occupational exposure to lung cancer.  The Office of Judges found that Mr. Danko neither had asbestosis nor was there physical evidence of asbestos exposure. The Office of Judges further found that the preponderance of the evidence did not support Mrs. Danko's application for dependent’s benefits.  The Board of Review reached the same conclusions in a decision on May 5, 2011.

This decision should certainly play a significant role in the West Virginia asbestos litigation.