IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2018 Term
_______________

FILED
Nos. 17-1060, 17-1061, 17-1063, 17-1123
November 2, 2018
Consolidated
released at 3:00 p.m.
_______________
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

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
_______________

 Appeals from the West Virginia
Workers’ Compensation Board of Review
_______________
AFFIRMED
_______________
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 delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting
Opinion.
JUSTICE LOUGHRY suspended and therefore not participating, and
JUSTICE FARRELL sitting by temporary assignment.

 SYLLABUS BY THE COURT
1. W.Va. Code, 23-4-15(b) [2010], in cases not involving the death of the claimant,
sets forth two time limitations regarding the filing of an application for occupational
pneumoconiosis benefits: (1) 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) within three years from and after a diagnosed
impairment due to occupational pneumoconiosis was made known to the claimant by a
physician.

2. Where a claim for occupational pneumoconiosis benefits has been denied, a new
application may be filed, in cases not involving the death of the claimant, based on the same
date of last exposure as the prior claim, if filed pursuant to the first time limitation and
attendant requirements of W.Va. Code, 23-4-15(b) [2010]: within three years of the date of
last exposure to occupational dust. If not filed within that time limitation, a new application
may be filed pursuant to the second time limitation of W.Va. Code, 23-4-15(b) [2010]: within
three years from and after a diagnosed impairment due to occupational pneumoconiosis was
made known to the claimant by a physician. Under the second time limitation, the new
application, will not be referred to the Occupational Pneumoconiosis Board unless the
Physician’s Report filed with the claimant’s new application sets forth a diagnosed
impairment due to occupational pneumoconiosis.

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
2

 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.

1

All four of Pennington’s prior OP claims, nos. 850018570, 900019489,
9300062421 and 2001003946, were referred to the Occupational Pneumoconiosis Board,
and, in all four, the OP Board found insufficient evidence to make a diagnosis of OP. In
the last of the prior OP claims, no. 2001003946, the Occupational Pneumoconiosis
Board’s October 31, 2000, report stated that there was insufficient pleural or parenchymal
(elemental) evidence to establish a diagnosis of occupational pneumoconiosis.
3

 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

2

The Claim Administrator stated: “Your claim is considered to be a duplicate of
prior claim 2001003946 and is denied on the basis of no additional exposure.”
4

 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

5

 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

3

Arthur’s two prior claims, nos. 970058770 and 2002026846, were referred to the
Occupational Pneumoconiosis Board, and, in both, the OP Board found insufficient
evidence to make a diagnosis of OP. In the latter claim, no. 2002026846, the
Occupational Pneumoconiosis Board’s February 14, 2002, report stated that there was
insufficient pleural or parenchymal (elemental) evidence to establish a diagnosis of
occupational pneumoconiosis. Arthur’s date of last exposure in that claim, no.
2002026846, was listed as January 2000.
6

 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.

4

West retired on June 1, 2003. His prior claim, no. 2007212246 (a/k/a no.
2006032303), listed 2003 as his date of last exposure. The Physician’s Report stated
“possible OP” but indicated no impairment of West’s capacity to work. In its October 5,
2006, report, the Occupational Pneumoconiosis Board found insufficient evidence to
make a diagnosis of OP, i.e., there was insufficient pleural or parenchymal (elemental)
evidence to establish a diagnosis of occupational pneumoconiosis.
7

 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 Administrator was
reversed by the Office of Judges. The Office of Judges determined that West was not barred
from filing the current claim with the same date of last exposure as the prior claim.

As with Pennington and Arthur, it was undisputed that West had no additional dust
exposure and that he did not file the current claim within three years of the date his exposure
ceased. However, the Office of Judges relied on the “diagnosed impairment” component of
W.Va. Code, 23-4-15(b) [2010], and concluded that additional exposure is not required to file
a new claim. The three year statute of limitation, as to West, 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 for OP benefits. According to the Office of Judges, for claims not filed within three
years of the date of last exposure, W.Va. Code, 23-4-15(b) [2010], does not require evidence
of impairment when the claimant files an application for OP benefits.

8

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

IV. Randy Keffer
Keffer was employed in surface mining with May 15, 2010, as his date of last
exposure to occupational dust. His current claim, no. 2017008634, is dated August 9, 2016,
and sets forth no prior claims for OP benefits. A Physician’s Report and radiology report
were filed in conjunction with the claim. Although the radiology report stated “negative for
pneumoconiosis,” the Physician’s Report completed by a nurse practitioner
indicated a diagnosis of “coal dust exposure.” Nevertheless, the Physician’s Report further
indicated that it was unknown whether Keffer had contracted OP and unknown whether his
capacity to work was impaired by OP.

On November 2, 2016, the Claim Administrator rejected Keffer’s current claim for
OP benefits. Citing W.Va. Code, 23-4-15(b) [2010], the Claim Administrator noted that
Keffer’s claim was not filed within three years of May 15, 2010, his date of last exposure,
and that, moreover, Keffer did not have a diagnosis of OP. The Claim Administrator,
however, was reversed by the Office of Judges. The Office of Judges emphasized that
Keffer’s “coal dust exposure” diagnosis resulted from an earlier “black lung exam”
conducted by the nurse practitioner. According to the Office of Judges, although Keffer was
9

 a smoker, the exam determined that he suffered from a chronic cough, suggesting OP.
Nevertheless, the Office of Judges acknowledged:

An examination of the claimant’s lung was unremarkable. [Nurse
practitioner] Ms. Freeman diagnosed a chronic cough. * * * Ms. Freeman
wrote that she did not know if the claimant had occupational pneumoconiosis,
how long the claimant had occupational pneumoconiosis and whether the
claimant’s capacity for work was impaired due to occupational
pneumoconiosis.

As stated above, Keffer’s radiology report was “negative for pneumoconiosis”

The Board of Review reversed the Office of Judges on November 21, 2017, and
reinstated the Claim Administrator’s rejection of Keffer’s claim. The Board of Review
applied W.Va. Code, 23-4-15(b) [2010], as it did in the other three cases.

V. Standard of Review
Pennington, Arthur, West and Keffer appeal from the Board of Review’s rejection of
their claims for occupational pneumoconiosis benefits. This Court consolidated the claims
for purposes of argument.

The standard of review in workers’ compensation cases is provided by statute, W.Va.
Code, 23-5-15 [2005], which states that deference shall be given to the Board of Review’s
“findings, reasoning and conclusions.” Here, the Board of Review reversed the decisions of

10

 the Office of Judges and reinstated the Claim Administrator’s rejection of all four OP claims.
As a result, subsection (d) of W.Va. Code, 23-5-15 [2005], is applicable which provides a
detailed basis for reviewing the Board of Review’s decisions:

(d) If the decision of the Board effectively represents a reversal of a
prior ruling of either the commission or the Office of Judges that was
entered on the same issue in the same claim, the decision of the board may
be reversed or modified by the Supreme Court of Appeals only if the
decision is in clear violation of constitutional or statutory provisions, is
clearly the result of erroneous conclusions of law, or is so clearly wrong
based upon the evidentiary record that even when all inferences are
resolved in favor of the board’s findings, reasoning and conclusions, there
is insufficient support to sustain the decision. The court may not conduct a
de novo re-weighing of the evidentiary record.5

Cf., Wilkinson v. West Virginia Office Ins. Comm’n, 222 W.Va. 394, 398, 664 S.E.2d 735,
739 (2008) (A different subsection of W.Va. Code, 23-5-15 [2005], applies where the Board
of Review affirms both underlying administrative decisions).

VI. Discussion
A.
Pursuant to W.Va. Code, 23-4-1(a) [2008], workers’ compensation benefits shall be

5

Syllabus point 2 of Gill v. City of Charleston, 236 W.Va. 737, 783 S.E.2d 857
(2016), holds: “Pursuant to W.Va. Code § 23-4-1g(a) (2003) (Repl. Vol. 2010), a
claimant in a workers’ compensation case must prove his or her claim for benefits by a
preponderance of the evidence.” See syl. pt. 1, Staubs v. State Workmen’s Comp.
Comm’r, 153 W.Va. 337, 168 S.E.2d 730 (1969) (“A claimant in a workmen’s
compensation proceeding has the burden of proving his claim.”). Accord, syl. pt. 2, Clark
v. State Workmen’s Comp. Comm’r, 155 W.Va. 726, 187 S.E.2d 213 (1972).
11

 paid to employees “who have received personal injuries in the course of and resulting from
their covered employment.”

Subsection (b) of that statute includes occupational

pneumoconiosis within the phrase “personal injury.”6

Benefits, however, cannot be awarded on a diagnosis of OP alone. An impairment
is also required. W.Va. Code, 23-4-6a [2005], states, in part, that there shall be no permanent
partial disability awarded “based solely upon a diagnosis of occupational pneumoconiosis,
it being the intent of the Legislature to eliminate any permanent partial disability awards for
occupational pneumoconiosis without a specific finding of measurable impairment.” See
Wampler Foods, Inc. v. Workers’ Compensation Division, 216 W.Va. 129, 140, 602 S.E.2d
805, 816 (2004) (The Legislature eliminated benefits for claimants who have OP “without
measurable pulmonary impairment.”).

Pursuant to W.Va. Code, 23-4-6a [2005], the percentage of permanent disability is
determined by the degree of medical impairment that is found by the Occupational
Pneumoconiosis Board.7

In that regard, W.Va. Code, 23-4-8b [2005], requires the

6

Occupational pneumoconiosis is a progressive disease. See W.Va. Code, 23-416(a)(2) [2005], (Occupational pneumoconiosis is medically recognized as progressive in
nature). See also Lester v. State Workmen’s Comp. Comm’r, 161 W.Va. 299, 303, 242
S.E.2d 443, 445 (1978) (Occupational pneumoconiosis “often does not become manifest
until years after the victim was last exposed to the causes of the disease.”).
7

W.Va. Code, 23-4-8c(a) [2009], provides that the Occupational Pneumoconiosis
Board’s report in an OP claim shall include “its findings and conclusions on every
12

 claimant/employee and the employer to produce to the Board “all reports of medical and Xray examinations which may be in their respective possession or control, showing the past
or present condition of the employee.” Lastly, W.Va. Code, 23-4-8c(e) [2009], provides that,
if the claimant receives a final decision that he or she has no evidence of occupational
pneumoconiosis, the claimant is barred for three years from filing a new claim for OP
benefits.8

The matter before us, however, concerns the application process prior to referral to
the Occupational Pneumoconiosis Board. To receive OP benefits, the four claimants were
required to satisfy the requirements of W.Va. Code, 23-4-15(b) [2010], regarding the current
claims. W.Va. Code, 23-4-15(b) [2010], in cases not involving the death of the claimant, sets
forth two time limitations regarding the filing of an application for occupational
pneumoconiosis benefits: (1) within three years from and after the last day of the last

medical question in controversy.” Specifically, subsection (c) of that statute provides, in
part, that the findings and conclusions of the Board shall determine whether the claimant
“has contracted occupational pneumoconiosis and, if so, the percentage of permanent
disability resulting therefrom.”
8

The three year bar in W.Va. Code, 23-4-8c(e) [2009], is not in contention herein.
Pennington, Arthur and West’s current claims were filed approximately fifteen, thirteen
and nine years respectively after the last OP Board decision in their prior claims. Keffer
had no prior claim. Moreover, we note that the four appeals before us do not involve
previously filed, but unruled upon, OP claims, or requests to modify rulings in prior OP
claims.
13

 continuous period of sixty days or more during which the claimant was exposed to the
hazards of occupational pneumoconiosis or (2) within three years from and after a diagnosed
impairment due to occupational pneumoconiosis was made known to the claimant by a
physician.

B.
Here, the facts are undisputed. The current applications of Pennington, Arthur, West
and Keffer consist of the Employees’ Report of Occupational Pneumoconiosis, the
Physician’s Report and the radiology report. The applications also include the claimants’
history of occupational dust exposure.9 Pennington, Arthur and West had prior OP claims
which were referred to the Occupational Pneumoconiosis Board, resulting in findings in each
case of insufficient evidence to make an OP diagnosis. Pennington, Arthur and West had no
further occupational dust exposure. Moreover, neither they, nor Keffer, filed their current
application for benefits within three years of their date of last exposure. Thus, the Board of

9

West Virginia Code of State Rules § 85-20-52.1, sets forth the following
requirements for an application for OP benefits:
A properly completed application must be received before the
potential claim will be considered by the Commission, Insurance
Commissioner, private carrier or self-insured employer, whichever is
applicable. A properly completed application must include 1) a completed
WC-105 form; 2) a completed WC-205 form; 3) an ILO form properly
completed by a certified “B” reader, and 4) a listing of all alleged exposures
to harmful dust, including type of dust, and extent and duration of exposure
with each named employer.
14

 Review correctly concluded that the claimants failed to meet the first time limitation in W.Va.
Code, 23-4-15(b) [2010], i.e., that the application for OP 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.”

The second time limitation in W.Va. Code, 23-4-15(b) [2010], states that the
application for OP benefits shall be filed “within three years from and after a diagnosed
impairment due to occupational pneumoconiosis was made known to the employee by a
physician.” However, none of the four claims include a diagnosed impairment due to OP.
Although the radiology reports indicate “simple pneumoconiosis” regarding Pennington,
Arthur and West, all three Physician’s Reports state that it is unknown whether their capacity
for work has been impaired by OP. The radiology report for Keffer is “negative for
pneumoconiosis.” Although Keffer’s Physicians’ Report indicates “coal dust exposure,” the
Report further indicates that it is unknown whether he contracted OP and unknown whether
his capacity for work has been impaired by OP.

The claimants ask this Court to reinstate the decisions of the Office of Judges. The
claimants assert that because they were not informed by a physician that they have a
diagnosed impairment due to OP, they were not barred from filing new claims, even (as in
the case of Pennington, Arthur and West) with the same date of last exposure as in their prior
claims. Thus, the claimants rely on the second time limitation in W.Va. Code, 23-4-15(b)
15

 [2010], which states that the application for OP benefits shall be filed “within three years
from and after a diagnosed impairment due to occupational pneumoconiosis was made
known to the employee by a physician.” Pennington, Arthur and West emphasize that their
current applications indicate a diagnosis of OP (with Keffer’s application listing “coal dust
exposure”), but since they have yet to be informed of an actual impairment, their claims are
timely and must be referred to the Occupational Pneumoconiosis Board.

The respondent Commissioner and employers acknowledge that the claimants may
have developed simple pneumoconiosis due to the progressive nature of OP and without
additional exposure to occupational dust. However, the respondents focus on the claimants’
assertion that these new claims must be referred to the Occupational Pneumoconiosis Board
without any evidence of impairment. According to the respondents, W.Va. Code, 23-4-15(b)
[2010], requires the claimant, and not the OP Board, to make the initial showing of “a
diagnosed impairment due to occupational pneumoconiosis.” Otherwise, the respondents
argue, the OP Board would be unreasonably burdened with the referrals of any number of
new, unsupported claims from the same claimant, based upon the same date of last exposure
and without any indication in the new application that the claimant has acquired an
impairment due to OP since his or her prior, unsuccessful OP claim.

The current claims of Pennington, Arthur and West, thus raise a limited issue before
this Court regarding the filing of new applications for OP benefits, where the claim is
16

 unsupported by a diagnosed impairment, and with the same date of last exposure as a prior,
unsuccessful claim following adverse findings by the OP Board.

The respondents correctly maintain that the import of the claimants’ and the Office
of Judges’ interpretation of W.Va. Code, 23-4-15(b) [2010], is that a claimant may file
unlimited OP claims, and have them all referred to the Occupational Pneumoconiosis Board,
as long as the claimant has not been told by a physician that he or she has a diagnosed
impairment due to OP. Such an interpretation could not have been reasonably intended by
the Legislature. In syllabus point 2 of Sheena H. v. Amfire, LLC, 235 W.Va. 132, 772 S.E.2d
317 (2015), this Court confirmed:

It is the duty of a court to construe a statute according to its true intent,
and give to it such construction as will uphold the law and further justice. It
is as well the duty of a court to disregard a construction, though apparently
warranted by the literal sense of the words in a statute, when such construction
would lead to injustice and absurdity. Syl. Pt. 2, Click v. Click, 98 W.Va. 419,
127 S.E.194 (1925).

Accord, syl. pt. 4, Lewis County Board of Education v. Holden, 234 W.Va. 666, 769 S.E.2d
282 (2015).

If a claimant for OP benefits is unable to meet the first time limitation set forth in
W.Va. Code, 23-4-15(b) [2010], a further opportunity to file a claim is provided by the
second time limitation, namely, filing within three years after a diagnosed impairment due
17

 to OP is made known to the claimant by a physician. The statute, therefore, takes into
account the progressive nature of the disease, yet precludes unsubstantiated, repeated claims
which would unreasonably burden the Occupational Pneumoconiosis Board. In the present
matter, the current OP claims could have reached the OP Board for analysis, if the
applications had indicated a diagnosed impairment due to OP and were filed within the
second time limitation under W.Va. Code, 23-4-15(b) [2010]. Otherwise, benefits cannot be
awarded on a diagnosis of OP alone.

Consequently, this Court holds that where a claim for occupational pneumoconiosis
benefits has been denied, a new application may be filed, in cases not involving the death of
the claimant, based on the same date of last exposure as the prior claim, if filed pursuant to
the first time limitation and attendant requirements of W.Va. Code, 23-4-15(b) [2010]: within
three years of the date of last exposure to occupational dust. If not filed within that time
limitation, a new application for benefits may be filed pursuant to the second time limitation
of W.Va. Code, 23-4-15(b) [2010]: within three years from and after a diagnosed impairment
due to occupational pneumoconiosis was made known to the claimant by a physician. Under
the second time limitation, the new application, will not be referred to the Occupational
Pneumoconiosis Board unless the Physician’s Report filed with the claimant’s new
application sets forth a diagnosed impairment due to occupational pneumoconiosis.10

10

We find no conflict between the required “diagnosed impairment due to
occupational pneumoconiosis” of W.Va. Code, 23-4-15(b) [2010], and the “presumption
18

 Here, the prior claims of Pennington, Arthur and West were referred to the
Occupational Pneumoconiosis Board and ultimately failed to result in an award of benefits.
None of their current claims include a diagnosed impairment due to OP. All three
Physician’s Reports state that it is unknown whether their capacity for work has been
impaired by OP. Pennington, Arthur and West insist, nevertheless, that their claims be
referred to the OP Board. Under their theory, if their current claims are unsuccessful before
the OP Board, W.Va. Code, 23-4-15(b) [2010], authorizes them to file similar, unsupported
claims again and again, with a time limit only imposed when a physician informs them of a
diagnosed impairment. This Court finds that interpretation notably unconvincing, and we
conclude, as did the Board of Review, that the claims should not go forward.

Finally, Keffer’s application for OP benefits was filed six years after his date of last
exposure. Unlike Pennington, Arthur and West, he had no prior OP claims. Keffer’s
radiology report was negative for OP, and his Physician’s Report revealed that it was

clause” found in W.Va. Code, 23-4-8c(b) [2009]. The latter provision states:
If it can be shown that the claimant or deceased employee has been
exposed to the hazard of inhaling minute particles of dust in the course of
and resulting from his or her employment for a period of ten years during
the fifteen years immediately preceding the date of his or her last exposure
to such hazard and that the claimant or deceased employee has sustained a
chronic respiratory disability, it shall be presumed that the claimant is
suffering or the deceased employee was suffering at the time of his or her
death from occupational pneumoconiosis which arose out of and in the
course of his or her employment. This presumption is not conclusive.
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 unknown whether he had contracted OP and unknown whether his capacity to work was
impaired by OP. The record indicates that the Physician’s Report, as well as the earlier
“black lung exam,” were completed by a nurse practitioner. Although the Physician’s Report
listed a diagnosis of “coal dust exposure,” the Claim Administrator noted that “coal dust
exposure” is not a legitimate diagnosis in an OP claim. Upon review, this Court finds no
basis upon which to overturn the denial of Keffer’s claim. Like Pennington, Arthur and
West, Keffer would be free to file a claim within three years of receiving a diagnosed
impairment due to occupational pneumoconiosis.

VII. Conclusion
This Court concludes that the current claims of Pennington, Arthur, West and Keffer
for occupational pneumoconiosis benefits were properly denied by the Board of Review
pursuant to W.Va. Code, 23-4-15(b) [2010]. The decisions of the Board in all four cases are,
therefore, affirmed.
Affirmed.

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