Submitted: May 19, 2015
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
M. SANDLER JUDGE.
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.
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
Issue One: Which insurer is liable for Wommack's
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
Issue Three: Is Wommack entitled to his attorney fees, costs,
and/or a penalty?
5 The following facts are established by a preponderance of
Work History at Cenex
6 On June 2, 1968, Wommack began working for Cenex in its
Laurel refinery. At the time, Reliance Insurance Company
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. None of the workers wore protective gear
or employed procedures to minimize their exposure to
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
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
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
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
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
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
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.
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."
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
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
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
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.
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." 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
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 ...