Mission Coal Company, LLC v. William Dempsey

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

MISSION COAL COMPANY, LLC, FILED
Employer Below, Petitioner April 10, 2023
EDYTHE NASH GAISER, CLERK
vs.) No. 22-ICA-241 (BOR Appeal No. 2058080) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
(JCN: 2020005852)

WILLIAM DEMPSEY,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Mission Coal Company, LLC (“MCC”) appeals the October 12, 2022,
order of the Workers’ Compensation Board of Review (“Board”), which reversed the claim
administrator’s denial of the claim. Respondent William Dempsey did not file a timely
response.1 The issue on appeal is whether the Board erred in affirming the Workers’
Compensation Office of Judges’ (“OOJ”) order, which reversed the claim administrator’s
denial of the claim.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Mr. Dempsey was employed by MCC from 2012 to May 3, 2018. Prior to that he
was employed by various other coal mines. Mr. Dempsey alleges that he was exposed to a
dust hazard for the entirety of his employment with MCC and other coal mines during the
ten years preceding 2018.

Mr. Dempsey submitted a Physician’s Report of Occupational Pneumoconiosis
dated March 21, 2019,2 and signed by Jenine Ward, FNP-BC. Mr. Dempsey was diagnosed
with occupational pneumoconiosis (“OP”). The report stated that Mr. Dempsey had a
FEV1/FVC of 73 and FEF 25-75 of 2.5. Pulmonary function studies were performed on
the same day. The pulmonary report stated that the FVC was 91%, the FEV1 was 87%, and

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MCC is represented by T. Jonathan Cook, Esq. Mr. Dempsey is represented by M.
Rachel Wolfe, Esq.
2
MCC alleges that Mr. Dempsey filed his application for OP benefits on July 30,
2019. However, MCC provided no evidence indicating that the application was filed on
July 30, 2019.
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the FEV1/FVC was 73%. An x-ray was performed on January 14, 2019, and the results
found that small opacities p/q were found in all lung zones with a profusion of 1/0. The
report stated that there was minimal obstructive lung defect.

The claim administrator requested Mr. Dempsey’s employment history, which was
received on November 5, 2019. The claim administrator learned that Mr. Dempsey was
employed by Brooks Run Coal from April 2019 to October 2019. On November 15, 2019,
the claim administrator issued an order denying Mr. Dempsey’s application for OP benefits
because Mr. Dempsey had been employed by another coal mine, Brooks Run Coal, for
over sixty continuous days at the time of his application. Mr. Dempsey protested this order.

Mr. Dempsey was deposed on May 22, 2020. He testified that he was exposed to a
dust hazard while working for MCC performing underground mining jobs. Mr. Dempsey
also testified that he was exposed to a dust hazard for over sixty continuous days while
employed by Brooks Run Coal.

On March 29, 2021, the OOJ reversed the claim administrator’s order and found
that Mr. Dempsey satisfied the statutory exposure requirements for filing an OP claim
against MCC. The Board affirmed the OOJ’s order on October 12, 2022. MCC now appeals
the Board’s order.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, __ W. Va. __, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, MCC argues that because Mr. Dempsey had subsequently worked for
Brooks Run Coal where he had been exposed to coal dust for one hundred and fifty-seven

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days at the time he filed his application for OP benefits, he should have filed this claim
against his more recent potentially chargeable employer instead of MCC.

West Virginia Code § 23-4-1(b) (2021), provides, in relevant part that,

[f]or the purposes of this chapter, the terms “injury” and “personal
injury” include occupational pneumoconiosis and any other occupational
disease, as hereinafter defined, and workers’ compensation benefits shall be
paid to the employees of the employers in whose employment the employees
have been exposed to the hazards of occupational pneumoconiosis or other
occupational disease and have contracted occupational pneumoconiosis or
other occupational disease, or have suffered a perceptible aggravation of an
existing pneumoconiosis or other occupational disease, or to the dependents,
if any, of the employees, in case death has ensued, according to the provisions
hereinafter made: Provided, That compensation is not payable for the disease
of occupational pneumoconiosis, or death resulting from the disease, unless
the employee has been exposed to the hazards of occupational
pneumoconiosis in the State of West Virginia over a continuous period of not
less than two years during the 10 years immediately preceding the date of his
or her last exposure to such hazards, or for any five of the 15 years
immediately preceding the date of his or her last exposure.

West Virginia Code § 23-4-15(b) (2010), provides that,

[t]o entitle any employee to compensation for occupational
pneumoconiosis under the provisions of this subsection, the application for
compensation shall be made on the form or forms prescribed by the Insurance
Commissioner, and filed with the Insurance Commissioner, private carrier or
self-insured employer, whichever is applicable, 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.

The OOJ cited Ford v. Workmen’s Compensation Commissioner, 160 W. Va. 629,
237 S.E.2d 234 (1977) for the holding that the date of injury in an OP claim is the date of
last exposure to the hazards of OP. The Court further held in Ford that subsequent exposure

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to occupational dust, following the initial date of last exposure, “constitutes a new injury.”
Id. at 631, 237 S.E.2d at 235. The OOJ, as affirmed by the Board, found that the Ford case
indicates that Mr. Dempsey is not precluded from filing a claim against MCC even though
he had subsequent dust exposure while employed by a different employer after his
employment with MCC. We agree.

After review, we conclude that the OOJ, as affirmed by the Board, was not clearly
wrong in finding that MCC was a chargeable employer and Mr. Dempsey could choose to
file his OP claim against MCC. Mr. Dempsey was working at MCC on March 21, 2019,
when the claim form was dated, and Mr. Dempsey began the process of filing his OP claim.
Further, the OOJ, as affirmed by the Board, did not err in finding that Mr. Dempsey met
the statutory exposure requirements to file an OP claim.

Finding no error in the Board’s October 12, 2022, order, we affirm.

Affirmed.

ISSUED: April 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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