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Wommack v. National Farmers Union Property & Casualty Co.

Court of Workers Compensation of Montana

June 12, 2017


          Submitted: May 19, 2015



         Summary: Petitioner developed an OD from exposure to asbestos at the refinery where he worked. For most of his career, Petitioner worked within the refinery, but in the years before his retirement, he worked as an asphalt salesman based in an office across the street. The insurers at risk during Petitioner's time in the refinery maintain that he continued to be exposed to asbestos after changing jobs and his last injurious exposure occurred when he worked as a salesman. The insurer at risk during Petitioner's time as a salesman argues that Petitioner's last injurious exposure occurred when he worked fulltime in the refinery.

         Held: Although Petitioner's most significant exposure to asbestos occurred prior to accepting the sales position, he continued to experience exposure to asbestos until he retired. Since Petitioner continued to be exposed to the same type and kind of conditions which caused his OD, under In re Mitchell's "potentially causal" standard, Petitioner's last injurious exposure occurred when he worked as an asphalt salesman, and the insurer at risk at that time is therefore liable.

         ¶ 1 The trial in this matter occurred on May 19, 2015, at the Workers' Compensation Court in Helena. Petitioner Robert Wommack appeared and was represented by Ben A. Snipes. Charles G. Adams represented Respondent Nationwide Mutual Fire Ins. Co. (Nationwide). Thomas E. Martello and Melissa Quale represented Respondent Montana State Fund (State Fund). Michael P. Heringer represented Respondent Liberty Mutual Fire Ins. Co. (Liberty).

         ¶ 2 Exhibits: This Court admitted Exhibits 1 through 42, 44, 45, 48, 70 through 73, and 75 through 78 without objection. This Court also admitted pages 1 through 3, 10, and 12 through 49 of Exhibit 43 without objection. This Court admitted pages 4 through 9 and page 11 of Exhibit 43 over Liberty's relevancy objections. The parties did not offer Exhibits 46, 47, 49 through 69, and 74. Exhibits 79 through 82 were duplicative of other exhibits admitted herein. This Court admitted Exhibit 83 as a demonstrative exhibit over Wommack's objection. This Court also admitted certain discovery answers upon unopposed motions.

         ¶ 3 Witnesses and Depositions: This Court admitted the depositions of Terry Spear, PhD, Robert Wommack, William (Bill) Strauch, Robert Wetch, Dick Lohof, Robert Robinson, Louis Day, and James McMeekin, MD. Wommack and Bob Sheriff, CIH, CSP, were sworn and testified at trial.

         ¶ 4 Issues Presented: This Court considers the following issues:

Issue One: Which insurer is liable for Wommack's occupational disease?
Issue Two: If Liberty is not liable for Wommack's occupational disease, is it entitled to contribution and/or indemnification for the expense of the occupational disease panel?
Issue Three: Is Wommack entitled to his attorney fees, costs, and/or a penalty?


         ¶ 5 The following facts are established by a preponderance of the evidence.

         Wommack's Work History at Cenex

         ¶ 6 On June 2, 1968, Wommack began working for Cenex in its Laurel refinery.[1] At the time, Reliance Insurance Company insured Cenex.

         ¶ 7 Wommack was initially a laborer. His duties included picking up discarded pieces of asbestos insulation and sweeping up asbestos-contaminated dust. Asbestos-containing materials were common throughout the refinery and included the insulation and gaskets used on the pipes. At that time, workers were often unaware of asbestos' dangers.[2] None of the workers wore protective gear or employed procedures to minimize their exposure to asbestos.

         ¶ 8 After spending a year as a laborer, Wommack worked as a helper in the crude unit. Approximately six months later, he became a painter and his job duties entailed painting tanks and gas lines. This job did not usually involve contact with insulation. However, the working conditions throughout the refinery were dusty and the painters used compressed air to blow the dust off of pipes before painting them, putting more dust in the air. Wommack only used a respirator while actually painting.

         ¶ 9 In approximately 1970, Wommack began working throughout the refinery as a welder. Insulators typically removed the insulation from the pipes he welded, although Wommack occasionally did so himself. After the insulators removed the insulation, Wommack scraped insulation residue from the pipe by cleaning the pipe with a wire brush, brushing the loosened residue off with his hands, and then wiping his hands on his pants. On occasion, he broke off pieces of insulation with a hammer and the pieces would fracture and fall onto the refinery floor, creating a white "fiberish" dust. Wommack did not wear a respirator while doing this work. Furthermore, the refinery buildings' roofs and many of its walls were made of an asbestos-containing material called Transite. If Wommack had to run pipe through Transite panels, a carpenter would cut a hole in the panel with a circular saw. Wommack was in close proximity to the carpenter when this occurred, he did not wear respiratory protection during the cutting, and "Dust was flying everywhere."

         ¶ 10 National Farmers Union Property & Casualty Co. (National Farmers) began insuring Cenex on December 21, 1973.

         ¶ 11 By the mid-1970s, Cenex stopped using asbestos-containing materials. When insulators reinstalled insulation around pipes in the refinery, they discarded the old asbestos insulation and installed asbestos-free materials.

         ¶ 12 Wommack was a welder until approximately 1984. He then returned to the crude unit as an assistant operator. As an assistant operator, Wommack was present when workers disturbed insulation and he was in close proximity to pumps with asbestos-containing gaskets and insulation while insulators and pipefitters worked on the pumps.

         ¶ 13 After a year in the crude unit, Wommack became an assistant pumper. His duties included controlling the products flowing into the refinery's tanks and loading trucks and train cars. Wommack spent part of each shift on the refinery floor. Wommack was often in close proximity to insulators and pipefitters while those workers disturbed insulation.

         ¶ 14 During part of the time Wommack worked as an assistant operator and assistant pumper, Nationwide insured Cenex, providing workers' compensation insurance from September 30, 1985, until October 16, 1986. After Nationwide's coverage period ended, State Fund began insuring Cenex on October 16, 1986.

         ¶ 15 In 1988, Wommack went into management, first as a pumper maintenance foreman. As a pumper maintenance foreman, his job duties included coordinating repairs in the pumping department. He directly supervised the pipefitters, welders, and insulators who performed repairs on a daily basis. However, the area in which he worked as a pumper maintenance foreman, called "Zone D, " was a newly constructed area which did not contain asbestos insulation.

         ¶ 16 After approximately 18 months as a pumper maintenance foreman, Wommack became a maintenance foreman. Wommack's job duties remained largely the same, but he covered a larger area of the refinery, including areas which contained asbestos, and had more crews under his supervision. Wommack continued to supervise insulators while they handled insulation on a near-daily basis and wore no respiratory protection while doing so.

         ¶ 17 While a maintenance foreman, Wommack attended a one-week training program regarding asbestos removal and abatement. Wommack is unaware of Cenex having an asbestos removal program in place prior to his attending this program. There, he learned how to remove asbestos by covering it with a plastic bag and spraying it with water prior to beginning removal, a procedure called the "glove bag" method. Afterwards, Wommack supervised insulator crews to ensure they followed proper asbestos-removal procedures. Wommack wore a white paper dust mask during asbestos removal, but he never wore a respirator.

         ¶ 18 On May 15, 1990, Cenex issued work procedures for small scale/short duration asbestos removals in which it specified that workers were to use glove bags and wet methods for asbestos removal at all times, and that its state-certified asbestos insulators would perform these removals under the direction of a state-certified asbestos supervisor. The procedure included cordoning off an area around the work area, placing warning signs, installing the glove bag, encapsulating remaining insulation, and using a HEPA vacuum in the glove bag. The procedure specified the types of protective gear insulators were to wear, and how to properly dispose of the gear afterwards.

         ¶ 19 On December 16, 1992, Cenex filed an annual asbestos facility permit with the Montana Department of Environmental Quality (DEQ). Cenex informed DEQ that it projected that in 1993, it would remove or strip approximately 950 linear feet of pipe and valve insulation, including approximately 150 to 160 small jobs at a rate of 3 to 4 jobs per week, and 1 or 2 larger jobs each month which might involve Transite or vessel insulation.

         ¶ 20 In March 1993, Brand Services, Inc., published a Work Plan for the Cenex refinery regarding asbestos abatement. In the plan, the company acknowledged that asbestos fibers can be too small to be seen with an optical microscope, and that these smaller fibers are capable of readily penetrating lung tissue. The Work Plan stated, "There is no known safe level of exposure [to asbestos]."

         ¶ 21 On December 2, 1993, Cenex filed an annual asbestos facility permit with DEQ. Cenex projected that in 1994, it would remove or strip approximately 1025 linear feet of pipe and valve insulation, including approximately 150 small jobs at a rate of 3 to 4 jobs per week, and 1 or 2 larger jobs each month which might involve Transite or vessel insulation.

         ¶ 22 Also in 1993, Wommack accepted a promotion to Eastern Regional Manager of Residual Fuels for Cenex. In this position, Wommack's job duties included selling asphalt and pitch to state transportation departments and large highway contractors. Once he became Eastern Regional Manager, Wommack maintained an office in a building across the street from the refinery. He also supervised asphalt plants located in Mandan and Grand Forks, North Dakota. Wommack estimated that he spent 40% of his time in the office building and 60% of his time traveling - either calling on customers or visiting the asphalt plants.

         ¶ 23 However, on the weeks when he worked in the Cenex office in Laurel, Wommack spent an hour or two inside the Cenex refinery, checking on orders and making contact with the employees who filled those orders. Although he could not recall any specific incidents, Wommack recalled that the refinery continued to be dusty, and pieces of insulation came loose and blew around the refinery on windy days. He did not wear respiratory protection when he visited the refinery.

         ¶ 24 On July 1, 1994, State Fund ceased insuring Cenex, and Liberty became Cenex's workers' compensation insurer.

         ¶ 25 In 1995, 1996, and 1997, Cenex filed annual asbestos facility permits with DEQ, in which Cenex projected that it would remove or strip approximately 2050 linear feet of pipe and valve insulation during the following year, including approximately 300 small jobs at a rate of 5 or 6 per week, and 1 or 2 larger jobs each month.

         ¶ 26 Wommack remained in the Eastern Regional Manager position until retiring from Cenex on April 1, 1998.

         ¶ 27 On June 2, 1998, Cenex, now part of CHS, Inc. (CHS), became a self-insured employer and remained so through the time of this trial.

         ¶ 28 Air quality analyses performed at Cenex in January and December of 2001 detected the presence of airborne asbestos, albeit in quantities below the Occupational Safety and Health Administration (OSHA) exposure limits. Under current OSHA standards, the permissible asbestos exposure limit for workers is an 8-hour time-weighted average of 0.1 fiber per cubic centimeter of air, as measured by PCM. However, OSHA acknowledges that at that current standard, the risk of death is 3.4 workers per 1, 000, meaning that even though OSHA allows exposure at that level, that level of exposure is not harmless.

         ¶ 29 In the summer of 2014, Wommack attended a picnic for Cenex retirees. There, a Cenex safety engineer gave a presentation in which he reported that: Cenex continued to remove asbestos from the refinery; Cenex had removed 400 tons of asbestos insulation and pipe during each of the last two years; and Cenex projected the removal of 800 tons of asbestos in the next year.

         ¶ 30 Asbestos insulation and other asbestos-containing materials remain in use in the Cenex refinery, and the refinery has removed a significant amount of asbestos every year at least since the mid to late 1970s. Typically, Cenex employees remove small amounts of asbestos using a standardized abatement protocol, and contractors specializing in asbestos removal perform larger abatements.

         ¶ 31 Wommack opined that although his most significant exposure to asbestos occurred while he worked as a laborer and welder in the refinery because of his routine direct contact with asbestos-containing materials, he continued to be exposed to asbestos as a bystander throughout the remainder of his career.

         Testimony of Wommack's Co-Workers

         ¶ 32 Louis Day, the Cenex refinery manager from 1975 until 1992, acknowledged that until the late 1980s, most Cenex workers could handle asbestos-containing materials as part of their job duties, and many refinery workers were exposed to asbestos on a daily basis. Day testified that for both practical and cost-effective reasons, Cenex removed asbestos gradually, replacing asbestos-containing materials with asbestos-free materials only if the materials needed to be disturbed for other reasons, such as repair work, and that by the mid-1980s, Cenex regularly employed safety procedures regarding asbestos. However, Cenex never undertook a large-scale abatement for the purpose of removing asbestos from the refinery during Day's tenure.

         ¶ 33 Robert (Bob) Robinson worked at Cenex from February 1960 until he retired on April 1, 1999. During his career, Robinson held various jobs within the refinery, including pipefitter helper and welder, ultimately holding the position of maintenance foreman of new construction. Robinson recalled that many of the jobs he performed, such as removing insulation from pipes, created dusty conditions in the refinery. Robinson opined that refinery workers were exposed to asbestos throughout Robinson's entire career at Cenex up until his retirement in 1999 because "there was asbestos still throughout the refinery on all the pipes. And you've got vibrations and you've got winds and storms and there's always dust in the pipe racks."

         ¶ 34 Robert J. Wetch began working at the Cenex refinery in August 1966 and retired in 2001. The jobs Wetch held included insulator helper, pipefitter, and crane operator. As an insulator helper, Wetch was in daily contact with asbestos. He removed asbestos insulation from pipes and dropped it onto the floor, where laborers swept it up. He also ground up pieces of insulation in a hammer mill to turn it into a powder, to which he then added water to form a cement-like substance which he used to coat fittings which were difficult to cover with insulation - a process he described as creating a "terrible" amount of dust. Later, as a pipefitter, Wetch used a Skilsaw to cut Transite panels, which also produced dust. At the time, Wetch was unaware of the dangers of asbestos. He recalled that in approximately 1985, the refinery implemented safety protocols for working with materials suspected of containing asbestos, which included wearing protective gear and using glove bags. However, Wetch also believed that he was exposed to asbestos until he retired in 2001. Wetch explained that near the end of his career:

I don't think that it was haphazard [asbestos] removal anymore. But the refinery has so much asbestos in it still, that I was -- anytime the wind blew, something broke or anything like that, and there was still asbestos insulation around the pipes and stuff, then it goes all through the refinery if -- and so up until I retired it was always there, and it's still there.

         Wetch believed the refinery continues to have a hazardous level of asbestos, noting, "[T]he wind tears the tin [covering] off [the insulation], the insulation becomes bare, and it's in the wind. . . . [W]hen the wind's blowing it's all over . . . in the air."

         ¶ 35 William Strauch worked at the Cenex refinery from October 1971 until June 2007 in various jobs, including as a welder at roughly the same time as Wommack. Strauch and Wommack worked together on many occasions. Strauch recalled that as welders, he and Wommack routinely worked with gaskets which contained asbestos. Like Wommack, Strauch attended a training program at Cenex's request to become certified for asbestos removal. Strauch recalled that in the mid-1980s, workers began following safety protocols and wearing protective gear when working with asbestos-containing materials, although he further noted that workers did not always follow the recommended protocols. Strauch testified that when Wommack worked as a maintenance foreman from 1988 until 1993, "Anytime there was a work order for removal of insulation, he could have been exposed [to asbestos], and that could have been nearly every day."

         Expert Testimony

         ¶ 36 Wommack and Liberty both retained expert witnesses. Wommack retained Terry Spear, who has a PhD in industrial hygiene and is a professor emeritus at Montana Tech. Since 1985, Dr. Spear has performed litigation consulting in cases involving ARD, including numerous cases involving occupational asbestos exposure. Dr. Spear had co-authored at least seven peer-reviewed publications pertaining to asbestos.

         ¶ 37 Liberty retained Robert E. Sheriff, MS, CIH, CSP, who is the CEO of Atlantic Environmental, Inc., an industrial hygiene, safety, and environmental consulting firm based in Dover, New Jersey. Sheriff has an MA in preventive medicine and environmental health, is certified by the American Board of Industrial Hygiene as an industrial hygienist, and has approximately 40 years' experience in the field of industrial hygiene, among other qualifications. Although this was Sheriff's first appearance as an expert witness in Montana, he has testified in other asbestos cases throughout the country "almost exclusively [for] defendants."

         ¶ 38 Dr. Spear and Sheriff both opined that Wommack suffered exposure to asbestos at the Cenex refinery. However, they disagreed as to when Wommack may have experienced his last exposure to a significant amount of asbestos, and as to whether exposure to a minute amount of asbestos could be harmful or significant.

         ¶ 39 In investigating this case, Dr. Spear reviewed depositions, including the depositions of Wommack, Wetch, Strauch, Robinson, and Day. He also reviewed asbestos safety and removal records from Cenex, and the pleadings in this case. He then provided a report to Wommack's counsel which set forth his findings and opinions.

         ¶ 40 Dr. Spear opined that Wommack's most significant exposures occurred from 1968 through 1984 when his job duties entailed direct contact with asbestos-containing materials. However, he opined that Wommack continued to be exposed to asbestos in the refinery when he was a bystander while other workers handled asbestos-containing materials. Dr. Spear acknowledged that in approximately 1985, a "culture change" regarding asbestos occurred at the Cenex refinery. Prior to that time, the refinery had no significant safety protocols in place to protect workers from asbestos exposure. From approximately 1985 onward, workers would identify asbestos insulation and, for small removals, utilized glove bags and wet methods. For larger asbestos-removal projects, Cenex employed specialized contractors.

         ¶ 41 However, Dr. Spear testified that the fibers Wommack was exposed to after 1985 "contributed to his asbestos fibers in his lungs, " and that while ARD has a latency period, the length of time from asbestos exposure to development of ARD varies. Dr. Spear added that once Wommack became the Eastern Regional Manager, he spent less time in the refinery and his exposure to asbestos would have lessened, but it remained "very likely" that he was exposed to asbestos whenever he spent time in the refinery after 1993. In spite of the change in Wommack's job duties and the refinery's implementation of asbestos safety protocols, Dr. Spear opined that Wommack was exposed to a significant volume of asbestos throughout his 30-year career at Cenex. Dr. Spear stated, "I could not say that his exposure was nonexistent [after 1993]; . . . I still think there was a higher background of asbestos fibers in that refinery than you would find outside the refinery."[3]

         ¶ 42 Dr. Spear explained that asbestos from the 1960s, 1970s, and 1980s remains in the surface dust within the refinery and that he is unaware of Cenex attempting to remove dirt and dust which could contain residual asbestos. Dr. Spear explained that residual asbestos is hazardous because wind, air disturbances, vibrations, and worker activity may cause it to become airborne, and once airborne, asbestos fibers can remain aloft for long periods of time. Dr. Spear explained that the reintroduction of residual asbestos is a recognized avenue of exposure. Thus, Dr. Spear explained:

Because of the large volume of asbestos present in the source materials at the Cenex Refinery with which Mr. Wommack worked with and around over a 30 year period, together with constant work activities that disturbed and re-suspended asbestos fibers into his breathing zone, it is my opinion to a reasonable degree of scientific certainty that Mr. Wommack's exposure to asbestos was significant enough to result in his asbestosis.

         Dr. Spear further explained, "My opinion regarding his work as Regional Sales Manager is that he was exposed to asbestos fibers based on having to be in that refinery at least for a short period of time that would be above background levels of exposure if he was outside that refinery, and that the fibers that he was exposed to in that capacity contributed to his asbestos fibers in his lungs."[4] Dr. Spear opined that Wommack's last exposure to asbestos occurred in 1998, when he retired from Cenex.

         ¶ 43 Dr. Spear acknowledged that many of the air-sampling test results he reviewed for the Cenex refinery did not detect asbestos. However, insulation generally contains chrysotile asbestos, which is a very thin fiber, and Dr. Spear explained that the testing method utilized by Cenex - phase contrast microscopy (PCM) at 400 magnification - cannot detect the vast majority of chrysotile fibers. Dr. Spear stated that studies have indicated that approximately 80% of chrysotile fibers are too thin to be detected by PCM at 400 magnification. Dr. Spears also noted that only fibers longer than 5 micrometers are counted, although shorter fibers may also be hazardous.

         ¶ 44 Although Sheriff agreed with Dr. Spear that Wommack had significant potential for asbestos exposure through the time he worked as a welder until 1984, he disagreed with Dr. Spear's opinion that this exposure continued until 1998. Sheriff testified that Wommack's risk of contracting ARD as a result of his employment at Cenex from 1985 forward was "nonexistent" because of asbestos safety protocols. Sheriff further opined that after Wommack became Eastern Regional Manager, he was "definitely not" exposed to asbestos at the refinery.

         ¶ 45 Sheriff based these opinions on Cenex's adherence to OSHA requirements, the Asbestos Hazard Emergency Response Act (AHERA) criteria, and the results of air sampling tests Cenex performed. Sheriff noted that asbestos is only hazardous when fibers become airborne. Sheriff explained that in 1988, OSHA required all U.S. facilities to affix warning labels to asbestos-containing materials, and therefore he maintained that by the end of the year, all asbestos-containing materials in the refinery were identified and clearly labeled, reducing the possibility that these materials would be accidentally disturbed and thereby making the potential for exposure in the refinery "extremely small and likely nonexistent." Sheriff opined that the "glove bag" technique for small asbestos removal jobs, when done properly, results in no identifiable asbestos exposure to workers.

         ¶ 46 Although he did not inspect the Cenex refinery, Sheriff concluded that refinery workers who did not directly work with asbestos had no exposure to asbestos from 1988 onward. Sheriff agreed that his conclusion rests upon three assumptions: that all asbestos-containing insulation in the Cenex refinery is covered with an undisturbed and undamaged metal jacket; that workers correctly followed all required safety procedures when ...

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