Nos. 17-1060, 17-1061, 17-1063, 17-1123 Consolidated Workers’ 

Compensation Appeals – Pennington, Arthur, West, and Keffer

FILED
November 2, 2018 

released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

WORKMAN, C. J., dissenting:

These consolidated appeals involve three coal miners and one factory worker
with decades of occupational dust exposure including asbestos, silica, and/or coal dust. At
their essence, these appeals represent claimants who filed workers’ compensation claims
seeking to be examined by the Occupational Pneumoconiosis (OP) Board. By utilizing an
inapplicable statute of limitations to bar even the filing of a claim, today’s opinion is an
extreme departure from the long-standing rule of law firmly established in the management
of OP claims. The majority is way too eager to radically rewrite West Virginia Code § 234-15(b) (2017) with far-reaching and grotesquely unfair consequences. It demonstrates
either an ignorance of the law or a callous disregard for those who suffer from OP. While
the majority claims to be against judicial activism, apparently it will make exceptions as
its agenda requires. Accordingly, I vehemently dissent.

As discussed below, West Virginia law explicitly acknowledges that OP is
both a latent and a progressive disease. For this reason, a claimant suffering from OP is not
barred from filing multiple claims long after retirement, within certain parameters, to
obtain physical examinations from the experts in this field, the OP Board. Fenton Art Glass
Co. v. W.Va. Office of Ins. Comm’r, 222 W.Va. 420, 428, 664 S.E.2d 761, 769 (2008).
Serial claims have always been the nature of the OP beast; they have been fully
contemplated in the statutes, regulations, and caselaw over the last fifty years.
1


 In order to file a claim for OP benefits, a claimant must meet the
jurisdictional requirements of West Virginia Code § 23-4-1(b) (2017).1 While allowing for
serial claims in light of the progressive nature of the disease, the legislation imposes two
outer limitations periods that may serve to bar a claim. A claimant must file within the
statute of limitations as set forth in West Virginia Code § 23-4-15(b):
To 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
1

West Virginia Code § 23-4-1(b) provides, in part:
For 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.
2


 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.
Thus, there are two outer time limitations, after which a claim is barred: 1)
three years “after the last day of the last continuous period of sixty days” of exposure; or
2) three years “after a diagnosed impairment due to occupational pneumoconiosis was
made known to the employee by a physician.” Id. (emphasis added). These are, of course,
merely limitations periods which ultimately may bar a claim. They do not—nor do they
purport to—create a substantive, evidentiary threshold showing necessary by a claimant to
obtain an evaluation by the OP Board.2

2

Rather, it is West Virginia Code of State Rules § 85-20-52.1 that sets forth the
evidentiary requirements for filing 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 selfinsured 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.
3

 The majority, however, utilized this statutorily enacted “discovery rule” in
precisely this manner. The very narrow issue before the Court is whether a claimant must
proffer a “diagnosed impairment” before he is able to obtain an evaluation by the OP Board.
Utilizing the codified OP discovery rule embodied in West Virginia Code § 23-4-15(b),
the majority purported to answer that question. Yet, evading the real issue, the majority
holds: “Under the second time limitation, the new application, [sic] 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.” However, it is nonsensical to convert the language of the statute of
limitations into a new, substantive, threshold evidentiary requirement to filing subsequent
claims. The majority missed the entire point of this appeal. The majority fully conflates
substantive evidentiary requirements with this statute of limitations—two distinct legal
concepts. The result of this extraordinary fusion is catastrophic and legally fallacious. It
represents a remarkable feat of statutory contortion.

A claimant has never been required to bear the burden and expense of having
pulmonary function tests performed and evaluated before filing a claim. Because “it is and
has been the function of the OP Board to determine all medical questions relating to cases
of compensation for occupational pneumoconiosis. W.Va. Code § 23-4-8a (2005).”
Fenton, 222 W.Va. at 431, 664 S.E.2d at 772. Moreover, “‘the percentage of permanent
disability is determined by the degree of medical impairment that is found by the
occupational pneumoconiosis board.’ W.Va. Code § 23-4-6a (2005).” Fenton, 222 W.Va.
4


 at 431, 664 S.E.2d at 772. It is therefore nonsensical to require a claimant to produce
evidence of the very thing the OP Board serves to provide before being permitted to present
one’s claim to the OP Board.

The majority completely distorts the plain language of West Virginia Code
§ 23-4-15(b), which merely provides a time limit for the filing of workers’ compensation
claims for OP and creates out of whole cloth a new requirement for filing by holding these
claimants must have a physician’s diagnosis of impairment due to OP. I am appalled that
the majority would ignore established precedent and West Virginia Code § 23-4-8c(e),
which provides a claimant may file a new claim for OP (three years from the date of the
last OP Board’s decision) if his or her earlier filings were premature, considering the
progressive nature of this dreadful disease.3 The majority’s analysis of this important issue
is woefully under-developed and its conclusion is blatantly wrong.4

Inexplicably, the majority relegates the most relevant case to the issue before
us—Lester v. State Workmen’s Compensation Commissioner, 161 W.Va. 299, 242 S.E.2d
443 (1978)—to a footnote. The Lester Court recognized forty years ago that OP “often

3

The majority barely mentions West Virginia Code § 23-4-8c(e) in a footnote and
states it “is not in contention” here because the “appeals before us do not involve previously
filed, but unruled upon, OP claims, or requests to modify rulings in prior OP claims.”
However, West Virginia Code § 23-4-8c(e) is clearly implicated in these consolidated
appeals because it expressly covers a claimant “filing a new claim[.]” Id.
4

In the discussion section, the majority cites only two workers’ compensation cases.
5


 does not become manifest until years after the victim was last exposed to the causes of the
disease.” Id. at 303, 242 S.E.2d 445. The majority disregards this Court’s declaration that
“the legislature has expressly abandoned any fixed and rigid time restrictions within which
a claim for occupational pneumoconiosis benefits must be filed and has opted instead for
a limitation period based on the claimant’s discovery of the occupational disease.” Id. at
302, 242 S.E.2d 443. The Lester Court examined previous amendments to West Virginia
Code § 23-4-15,5 and recognized
[t]he legislature’s actions signify an awareness that
occupational pneumoconiosis may go undetected for a long
time, for this disease often does not become manifest until
years after the victim was last exposed to the causes of the
disease. The amendments also manifest legislative recognition
of the fact that a fixed and rigid time restriction on the filing of
a claim would occasionally result in a harsh and unjust result.
It would serve as a trap for the unwary worker whose claim
would be barred for an injury which was unknown to him at
the time filing was required. A set time limitation could
conceivably lapse before the symptoms of this insidious
disease became evident or before the disease results in
disability. It was just this kind of result the legislature expressly
sought to prevent.
5

Effective July 1, 1971, the statute provided:
To entitle any employee to compensation for
occupational pneumoconiosis . . . the application . . . must 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 the
employee’s occupational pneumoconiosis was made known to
him by a physician or which he should reasonably have known,
whichever shall last occur . . . . 1971 W.Va.Acts ch. 177.

Lester, 161 W.Va. at 301 n.2, 242 S.E.2d 445 n.2.
6


 Id. at 302-03, 242 S.E.2d at 445.

The necessary implication arising from Lester and the Legislature’s
liberalizing amendments of the statute is a legislative intent to ensure that workers who
have contracted OP must have a reasonable opportunity, after learning of its presence, to
present subsequent claims for the remainder of their lives in order to receive examinations
to determine their entitlement to benefits. Requiring claimants to have the very thing they
seek to obtain from the OP Board before they may reach the OP Board creates an entirely
new and frankly preposterous requirement.

The majority’s confusion is occasioned by its misreading of the statute of
limitations contained in West Virginia Code § 23-4-15(b). The statute provides for a
“discovery rule”—a codification of this common law principle. The statute of limitations
for an OP claim, much as a traditional statute of limitations, is three years from effectively
the date of last exposure. The discovery rule provided in the alternative allows for three
years from a “diagnosed impairment.” The second time limitation set forth in West Virginia
Code § 23-4-15(b), is only triggered “after a diagnosed impairment due to occupational
pneumoconiosis was made known to the claimant by a physician.” Consequently, a claim
is only time barred when a claimant has not filed within three years after he or she receives
a diagnosed impairment, from whatever medical provider.

7


 As to these claimants, the second time limitation set forth in West Virginia
Code § 23-4-15(b) has not triggered. The claimants submitted medical evidence of OP
diagnoses, but their physicians have not diagnosed impairment due to OP. Accordingly,
the claims are not time barred and these claimants should have been referred to the OP
Board for further examinations.

Our Legislature has long recognized that OP evolves into a chronic and
progressive respiratory disease that may lay dormant for years before totally disabling and
killing many of these coal miners. Lester, 161 W.Va. 299, 242 S.E.2d 443. The progressive
nature of pneumoconiosis demands reading West Virginia Code § 23-4-15(b) in a literal
manner to ensure that any worker afflicted with the disease, including its progressive form,
is given an appropriate opportunity to appear before the OP Board for subsequent
examinations.

This conclusion is consistent with the Federal Mine Safety and Health Act’s
(“Federal Act”) treatment of subsequent OP claims.6 The Federal Act explicitly recognizes

6

See 30 U.S.C. § 801 to § 964 (1977). Under the Federal Act, any claim for benefits
“shall be filed within three years after whichever of the following occurs later—(1) a
medical determination of total disability due to pneumoconiosis; or (2) March 1, 1978.” 30
U.S.C. § 932(f). The implementing regulation, 20 C.F.R. § 725.308, further explains that
the three-year statute of limitations is triggered when the miner receives a medical
determination of total disability arising from pneumoconiosis. See Consolidation Coal Co.
v. Williams, 453 F.3d 609, 615 (4th Cir. 2006).
8


 that pneumoconiosis is a “latent and progressive disease which may first become detectable
only after the cessation of coal mine dust exposure.” 20 C.F.R. § 718.201(c).

Based on this understanding of OP, courts examining the Federal Act
acknowledge that “nothing bars or should bar claimants from filing claims seriatim, and
the regulations recognize that many will.” Lisa Lee Mines v. Dir., Office of Workers' Comp.
Programs, U.S. Dep’t of Labor, 86 F.3d 1358, 1362 (4th Cir. 1996); see also Arch of
Kentucky, Inc. v. Dir., Office of Workers’ Comp. Programs, 556 F.3d 472, 481 (6th Cir.
2009) (recognizing restrictive interpretation on statute of limitation would be in tension
with Federal Act’s provision permitting successive claims when limitations period begins
after medical determination of OP).

The majority holds otherwise based on its irrational fear that repeat claims
“would unreasonably burden” the OP Board. However, the Annual Report of the OP Board
belies this false alarm. From July 1, 2015 to June 30, 2016, the OP Board performed repeat
examinations on 321 claimants and 131 of them (41%) received an additional award.7 From
July 1, 2016 to June 30, 2017, the OP Board performed repeat examinations on 409
claimants and 179 of them (44%) received an additional award.8 The very fact that these

7

West Virginia Occupational Pneumoconiosis Board 2016-2017 Annual Report,
http://www.wvlegislature.gov/legisdocs/reports/agency/I02_FY_2017_13746.pdf
8

Id.
9


 successive claims are regularly permitted—and result in additional OP awards—is strong
evidence of the deteriorating health of workers exposed to occupational dust and the need
for subsequent examinations considering the progressive nature of this disease. Moreover,
these results make the majority’s interpretation of the statute of limitations—that
effectively impedes such subsequent claims—completely untenable.

Across America, OP claims the lives of almost 1,500 coal miners every year.9
“It’s as if the Titanic sank every year, and no ships came to the rescue. While that long-ago
disaster continues to fascinate the nation, the miners slip into cold, early graves almost
unnoticed.”10 In light of this ongoing tragedy, our Legislature has implemented statutes and
regulations to ensure workers exposed to the hazards of OP receive follow-up medical
examinations for the remainder of their lives so that they may receive appropriate
compensation. Yet, the majority rewrites long-standing legislation, ignores this Court’s
precedent, and creates new law encumbering workers’ access to the OP Board. The

9

Brian L. Hager, Is There Light at the End of the Tunnel? Balancing Finality and
Accuracy for Federal Black Lung Benefits Awards, 60 Wash. & Lee L. Rev. 1561, 1562–
63 (2003).
10

Gardiner Harris & Ralph Dunlop, Dust, Deception, and Death: Why Black Lung
Hasn’t Been Wiped Out, Courier-J. (Louisville, Ky.), Apr. 19, 1998 (examining number of
death certificates listing pneumoconiosis as cause of death), http://www.courierjournal.com/dust/.
10 


 majority either grossly misunderstands these legal principles or chooses to show gross
insensitivity to the plight of West Virginia’s coal miners.11

11

See e.g., Brian C. Murchison, Due Process, Black Lung, and the Shaping of
Administrative Justice, 54 Admin. L. Rev. 1025, 1028 (2002) (chronicling protracted
litigation in federal black lung case of West Virginia coal miner Harold Terry who worked
nineteen years in coal mining before federal law mandated dust controls, and another ten
years, shoveling coal, working drill, and replacing belts; Mr. Terry’s health deteriorated
dramatically, with multiple lung collapses and surgeries, long after his exposure to coal
dust ended).
11