Appeals court says website article doesn't mean APCO knew risk - Beckley, Bluefield & Lewisburg News, Weather, Sports

Appeals court says website article doesn't mean APCO knew pigeon droppings posed risk

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The Fourth Circuit court of appeals said there's no evidence Appalachian Power Co. or Industrial Contractors, Inc., knew pigeon droppings at its plant in New Haven, WV could expose workers to an infectious lung disease.

The appeals court on Jan. 7 affirmed U.S. District Court Judge Robert C. Chamber's November 2012 decision granting summary judgement to Appalachian Power and Industrial Contractors.

Mason County resident Roger Hoschar and his wife, Judy, had originally filed suit in Circuit Court, alleging Appalachian Power and Industrial Contractors knew the risk yet failed to alert workers. Over the Hoschar's objections, the suit was removed to federal court at the request of the power company and Industrial Contractors.

Hoschar, a boilermaker working for Industrial Contractors, had been assigned to Appalachian Power 's Sporn plant for 13 months, including about 66 days during which his job was to remove debris, including the bird droppings, built up in the steel channels on one of the plant's precipitators and then weld steel patches over corroded portions of the ducts leading in and out of the unit.

He was terminated in 2007. Two years later, while undergoing routine pre-operative tests for an unrelated procedure, doctors discovered a mass in Hoschar's lung and did a biopsy, eventually determining he suffered from histoplasmosis.

Histoplasmosis is an infectious disease caused by inhaling the spores of a naturally occurring soil-based fungus. The fungus is endemic in the Ohio Valley region because it grows best in soils with high nitrogen content. Once an individual inhales the fungus, it colonizes the lungs, but most people who have it are unaware of it and show no symptoms of infection.

Hoschar said the two companies knew or should have known the risks associated with the bird droppings because a publication had been posted on the National Institute for Occupational Safety and Health website.

The appeals court, however, agreed with Chambers that, "Aside from the mere existence of the NIOSH Publication on OSHA's website...Hoschar has offered zero evidence that APCO had actual or constructive knowledge of the NIOSH Publication itself or ... constructive knowledge that the histoplasma capsulatum fungus was associated with accumulations of bird manure."

The opinion, written by Judge Stephanie Thacker, said that, since APCO did not have actual or constructive knowledge of a potential histoplasmosis risk, neither it or Industrial Contractors "(owed) Mr. Hoschar a duty to guard against it."