                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 3, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
WESLEY A. NUTTER,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0972 (BOR Appeal No. 2048282)
                   (Claim No. 2011036256)

HARVEY TRUCKING, INC., AND
MOUNTAIN ENERGY TRANSPORT, LLC
Employers Below, Respondents


                             MEMORANDUM DECISION
        Petitioner Wesley A. Nutter, by Patrick Kevin Maroney, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Harvey Trucking, Inc.,
by Patricia McCullagh, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 28, 2013, in
which the Board affirmed a March 15, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 6, 2011,
decision which rejected the claim. The Court has carefully reviewed the records, written
arguments, and appendices contained in the briefs, and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. 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. Nutter, a coal truck driver, alleges that he developed occupational pneumoconiosis
in the course of his employment for Harvey Trucking, Inc., and Mountain Energy Transport,
LLC. The physician’s report of occupational pneumoconiosis indicates that Mr. Nutter was first
diagnosed with occupational pneumoconiosis on August 3, 2010, three days before he began
working for Harvey Trucking, Inc. The employee’s report of occupational pneumoconiosis
indicates a date of last exposure of October 12, 2010, at which time he was working for Harvey

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Trucking, Inc. Mr. Nutter worked for Mountain Energy Transport from January of 2011 to
January of 2012, well after the date of last exposure.

        The claims administrator rejected the claim on June 6, 2011. It stated that Mr. Nutter was
employed for Harvey Trucking for only forty-five days, which falls short of the required sixty
days of occupational exposure under West Virginia Code § 23-4-15b (2009). Further, Mr.
Nutter’s occupational pneumoconiosis exposure occurred prior to, and not as a result of, his
employment with Harvey Trucking, Inc. Additionally, he was not exposed to the hazards of
occupational pneumoconiosis while employed by Harvey Trucking, Inc. He did not load or
shovel coal, and his truck was self-contained with a sealed truck bed and electric tarp. Therefore,
the claims administrator determined that Harvey Trucking, Inc., was not a chargeable employer.

       The Office of Judges affirmed the claims administrator’s decision in its March 15, 2013,
Order. The Office of Judges stated that, under West Virginia Code § 23-4-15b, an application for
occupational pneumoconiosis must be filed within three years after the later of the following
events: (a) the day of the last continuous period of sixty days during which the employee was
exposed to the hazards of occupational pneumoconiosis or (b) the date a diagnosed impairment
was made known to the employee by a physician. If the claim is not timely filed, the claimant
cannot receive benefits. Further, when a claimant has shown that he or she was exposed to the
hazards of occupational pneumoconiosis for a period of ten years during the fifteen years
immediately preceding the date of last exposure, West Virginia Code § 23-4-8c(b) (2009)
provides that it is presumed impairment is due to his or her occupation.

        In the instant case, the Office of Judges found that the claim for occupational
pneumoconiosis was properly denied because there is no defendant employer with whom Mr.
Nutter worked and was exposed to the hazards of occupational pneumoconiosis for sixty days
during the three years immediately preceding the date of last exposure. Though Mountain Energy
Transport, LLC, was joined in the litigation, Mr. Nutter worked for them after the date of last
exposure, and any occupational pneumoconiosis exposure alleged during his employment there
would be the subject of a new claim. The Office of Judges determined that Mr. Nutter worked
for Harvey Trucking, Inc., for less than the required sixty days prior to the date of last exposure.
Therefore, there is no chargeable defendant in this case and the claim could not be held
compensable.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its August 28, 2013, decision. On appeal, Mr. Nutter asserts that
he had at least sixty days of coal dust exposure while employed by Harvey Trucking, Inc. Harvey
Trucking, Inc., argues that Mr. Nutter has failed to meet the requirements of West Virginia Code
§ 23-4-15b. After review, this Court agrees with the reasoning of the Office of Judges and the
conclusions of the Board of Review. Mr. Nutter failed to meet the sixty day exposure to
hazardous dust requirement set forth in West Virginia Code § 23-4-15b. His claim therefore
cannot be held compensable.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
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conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

                                                                                    Affirmed.

ISSUED: December 3, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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