Pennington v. W. Va. Office of the Ins. Comm'r

• Decision Date: 02 November 2018
• Docket Number: 17-1063,17-1061,Nos. 17-1060,17-1123 Consolidated,s. 17-1060
• Court: West Virginia Supreme Court
• Parties: Lester PENNINGTON, Jr., Petitioner v. WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER, and Mountaineer Coal Company, Respondents and Richard L. Arthur, Petitioner v. West Virginia Office of the Insurance Commissioner, and Elk Run Coal Company, Inc., Respondents and Robert D. West, Petitioner v. EMC Metals, Inc., Respondent and Randy Keffer, Petitioner v. Fola Coal Company, LLC, Respondent

820 S.E.2d 626

Lester PENNINGTON, Jr., Petitioner

v.WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER, and Mountaineer Coal Company, RespondentsandRichard L. Arthur, Petitioner

v.West Virginia Office of the Insurance Commissioner, and Elk Run Coal Company, Inc., RespondentsandRobert D. West, Petitioner

v.EMC Metals, Inc., RespondentandRandy Keffer, Petitioner

v.Fola Coal Company, LLC, Respondent

Nos. 17-1060

17-1061

17-1063

17-1123 Consolidated

Supreme Court of Appeals of West Virginia.

Submitted October 10, 2018

Filed: November 2, 2018

Robert M. Williams, Esq., Maroney, Williams, Weaver & Pancake, PLLC, Charleston, West Virginia, Counsel for Lester Pennington, Jr., Richard L. Arthur, Robert D. West, and Randy Keffer

Timothy E. Huffman, Esq., Bradley A. Crouser, Esq., Jackson Kelly PLLC, Charleston, West Virginia, Counsel for EMC Metals, Inc.

Henry C. Bowen, Esq., Jenkins Fenstermaker, PLLC, Huntington, West Virginia, Patrick Morrisey, Esq., Attorney General, B. Allen Campbell, Esq., Senior Assistant Attorney General, Charleston, West Virginia, Counsel for the Insurance Commissioner

James W. Heslep, Esq., Jenkins Fenstermaker, PLLC, Clarksburg, West Virginia, Counsel for Fola Coal Company, LLC

Justice Armstead:

In these consolidated workers’ compensation cases, four claimants challenge the decisions of the Workers’ Compensation Board of Review which rejected their applications for occupational pneumoconiosis ("OP") benefits. The Board rejected the applications pursuant to W.Va. Code , 23-4-15(b) [2010]. That statute provides a claimant with two separate and distinct time limitations within which to file an OP claim: (1) within three years of the claimant’s date of last exposure to the hazards of OP or (2) within three years of the date a diagnosed impairment due to OP was made known to the claimant by a physician.

It is undisputed that none of the four claimants filed an application or claim within three years of their date of last exposure. The progressive nature of the disease, however, brings into consideration the second component of W.Va. Code , 23-4-15(b) [2010], i.e. , when a diagnosed impairment due to OP was made known to the claimant by a physician.

According to the claimants, without further exposure to occupational dust, a new claim for OP benefits can be filed at any time and referred to the Occupational Pneumoconiosis Board for analysis, regardless of the three year time limitation, as long as the claimant has not been informed by a physician of an impairment due to OP. The Commissioner and the claimants’ employers contend, however, that the claimants’ position would result in the filing of numerous, duplicate claims, unsupported by any evidence, which would excessively burden the work of the Occupational Pneumoconiosis Board. The Commissioner and the employers emphasize that, none of the four claims herein, filed years after the date of last exposure to occupational dust, set forth a diagnosed impairment. Thus, the Commissioner and the employers assert that the claims were properly rejected by the Board of Review.

Upon review, this Court concludes that the claimants’ position is without merit and that the claims were properly rejected pursuant to W.Va. Code , 23-4-15(b) [2010]. The decisions of the Board of Review in all four cases are, therefore, affirmed.

I. Lester Pennington, Jr.

Pennington was an underground coal miner and general laborer with approximately twenty-four years of exposure to occupational dust. Prior to the current claim, Pennington filed four unsuccessful claims for OP benefits.¹ The current claim, no. 2016008333, is dated July 22, 2015, and lists May 21, 1998, as Pennington’s date of last exposure to occupational dust. A Physician’s Report and radiology report were filed in conjunction with the claim. Although the radiology report indicated "simple pneumoconiosis

," the Physician’s Report stated that it was unknown whether Pennington’s capacity for work was impaired by OP.

On January 25, 2016, the Claim Administrator rejected the claim. The Claim Administrator cited the last of Pennington’s prior OP claims, no. 2001003946, and stated that, because Pennington had no exposure to occupational dust thereafter, his current claim was without merit.²

The Claim Administrator’s decision, however, was reversed by the Office of Judges. The Office of Judges determined that Pennington was not barred from filing the current claim with the same date of last exposure as the prior claim, no. 2001003946. Central to the decision of the Office of Judges was W.Va. Code , 23-4-15(b) [2010], which provides that the application for occupational pneumoconiosis benefits shall be filed

within three years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazards of occupational pneumoconiosis

or within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the employee by a physician and unless filed within the three-year period, the right to compensation under this chapter is forever barred, such time limitation being hereby declared to be a condition of the right and hence jurisdictional, or, in the case of death, the application shall be filed by the dependent of the employee within two years from and after the employee’s death, and such time limitation is a condition of the right and hence jurisdictional. (emphasis added)

It is undisputed that Pennington had no exposure to occupational dust after 1998 and that he did not file the current claim within three years thereof. However, the Office of Judges relied on the "diagnosed impairment" language of W.Va. Code , 23-4-15(b) [2010]. Noting that OP can onset for treatment at a later date, the Office of Judges concluded that additional exposure is not required to file a new claim and that the three year statute of limitation, as to Pennington, would only have been triggered by a "diagnosed impairment" made known to him by a physician. Thus, because he had not been informed that he had a diagnosed impairment due to OP, he was not barred from filing the current claim, even with the same date of last exposure as the prior claim.

On November 2, 2017, the Board of Review reversed the Office of Judges. Citing W.Va. Code , 23-4-15(b) [2010], the Board of Review reinstated the Claim Administrator’s rejection of Pennington’s claim and said without elaboration:

In an occupational pneumoconiosis claim that does not involve a death, the claimant must satisfy one of the following criteria: (1) file the claim within three years from and after the last day of the last continuous period of sixty days or more during which the claimant was exposed to the hazards of occupational pneumoconiosis

, or (2) file the claim within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the claimant by a physician. Neither of these criteria has been met in this claim. Therefore, the rejection of the claim must be reinstated.

II. Richard L. Arthur

Arthur, a coal miner with twenty-two years of exposure to silica and coal dust, filed two prior, unsuccessful claims for OP benefits.³ His current claim, no. 2016009150, is dated September 14, 2015, and lists January 13, 2000, as the date of last exposure to occupational dust. A Physician’s Report and radiology report were filed in conjunction with the claim. The radiology report indicated simple pneumoconiosis

. However, the Physician’s Report stated that it was unknown whether Arthur’s capacity to work was impaired by OP.

On February 2, 2016, the Claim Administrator rejected Arthur’s current claim for OP benefits. That claim and prior claim no. 2002026846 listed the same January 2000 date as Arthur’s date of last exposure. Because Arthur had no exposure to occupational dust after January 2000, the Claim Administrator ruled that the current claim was a duplicate of claim no. 2002026846 and should be rejected. However, the Claim Administrator was reversed by the Office of Judges. The Office of Judges determined that Arthur was not barred from filing the current claim with the same date of last exposure to occupational dust as the prior claim.

It was undisputed that Arthur had no exposure to occupational dust after January 2000 and did not file the current claim within three years thereof. However, the Office of Judges relied on the "diagnosed impairment" language of W.Va. Code , 23-4-15(b) [2010], and concluded that additional exposure is not required to file a new claim. Thus, the three year statute of limitation set forth in the statute, as to Arthur, would only have been triggered by a "diagnosed impairment" made known to him by a physician and, since he had not been informed by a physician of such an impairment, he was not barred from filing the current claim.

On November 2, 2017, the Board of Review reversed the Office of Judges and reinstated the Claim Administrator’s rejection of the claim. The Board of Review relied on W.Va. Code , 23-4-15(b) [2010], in the same manner as it did regarding Pennington.

III. Robert D. West

West, a plant worker and truck driver/mechanic with thirty-one years of exposure to occupational dust, filed a prior, unsuccessful claim for OP benefits.⁴ His current claim, no. 2016016561, is dated November 19, 2015, and lists January 6, 2003, as the date of last exposure to occupational dust. A Physician’s Report and radiology report were filed in conjunction with the claim. The radiology report indicated simple pneumoconiosis

. Nevertheless, the Physician’s Report stated that it was unknown whether West’s capacity to work was impaired by OP.

On April 12, 2016, the Claim Administrator rejected West’s current claim for OP benefits. Because West had no additional exposure to occupational dust after 2003, the date of last exposure in the prior claim, the Claim Administrator determined that West’s current claim was simply a duplicate of the prior claim. However, the Claim...