Durst v. West Virginia Office of Insurance Commissioner, 091319 WVSC, 18-0739

Docket Nº:18-0739
Party Name:LARRY DURST, Claimant Below, Petitioner v. WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and KANAWHA VALLEY CONSTRUCTION & ERECTION, Employer Below, Respondent
Judge Panel:CONCURRED IN BY: Chief Justice Elizabeth D. Walker, Justice Margaret L. Workman, Justice Tim Armstead, Justice Evan H. Jenkins Justice John A. Hutchison
Case Date:September 13, 2019
Court:Supreme Court of Appeals of West Virginia
 
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LARRY DURST, Claimant Below, Petitioner

v.

WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent

and

KANAWHA VALLEY CONSTRUCTION & ERECTION, Employer Below, Respondent

No. 18-0739

Supreme Court of Appeals of West Virginia

September 13, 2019

(BOR Appeal No. 2052741) (Claim No. 2017016154)

MEMORANDUM DECISION

Petitioner Larry Durst, by Edwin H. Pancake, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by Henry C. Bowen, its attorney, filed a timely response.

The issue on appeal is compensability. The claims administrator rejected the claim for occupational pneumoconiosis on May 9, 2017. The Office of Judges affirmed the decision in its February 26, 2018, Order. The Order was affirmed by the Board of Review on July 25, 2018.

The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Mr. Durst, a former oiler, foreman, and crane operator, alleges that he developed occupational pneumoconiosis as a result of occupational exposure. A Work History Detail Report states that Mr. Durst began working in 1973. From 1994 to 2003, he worked exclusively through the IUOE Union Hall in an administrative position. He last worked at a work site in March of 1994. The Employees' Report of Occupational Pneumoconiosis was completed on November 28, 2016, and indicates Mr. Durst was retired. He stated that he was diagnosed with occupational pneumoconiosis on October 26, 2016, by Jennifer Hadley, D.O. Mr. Durst alleged that he was exposed to the hazards of occupational pneumoconiosis for thirty-nine years. He indicated that his last employer with sixty days of...

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