                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 May 14, 2013

                                                                            RORY L. PERRY II, CLERK

MARGARET LOU HARDING, Widow of                                            SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
DAVID LEE HARDING (Deceased),
Claimant Below, Petitioner

vs.)   No. 11-0982	 (BOR Appeal No. 2045332)
                   (Claim No. 880060996)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

LITTLE MAN COAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Margaret Lou Harding, by John C. Blair, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated June 8, 2011, in which
the Board affirmed a November 17, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 8, 2009,
decision to deny Ms. Harding dependent benefits based on her husband’s death because the
claim was not timely filed. 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.
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       On January 20, 2008, Ms. Harding’s husband, an employee of Little Man Coal, Inc., died
from coal worker’s occupational pneumoconiosis which could have entitled Ms. Harding to
dependent benefits under West Virginia Code § 23-4-10 (b) (2005) amended by West Virginia
Code § 23-4-10 (2010) (effective June 8, 2010). Ms. Harding filled out the application for
dependent benefits and had the application notarized on January 5, 2009, but did not submit the
application to the claims administrator until June 5, 2009, over a year after her husband’s death.

        Under West Virginia Code § 23-4-15(b) (2005), amended by West Virginia Code § 23-4­
15 (2010) (effective June 8, 2010), a claim for dependent benefits based on the death of an
employee from occupational pneumoconiosis must be “filed by the dependent of the employee
within one year from and after the employee’s death, and such time limitation is a condition of
the right and hence jurisdictional.” In its November 17, 2010, Order the Office of Judges found
that Ms. Harding failed to file her application for benefits within the applicable one year statute
of limitations. The Office of Judges further found that Ms. Harding did not have any excuse that
was sufficient to overcome the time limitation of her claim. The Office of Judges determined, by
a preponderance of the evidence, that the claimant did not file her application in a timely manner
and that her claim, therefore, was barred.

       The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on June 8, 2011.

        We agree with the determination of the Office of Judges that Ms. Harding failed to file
her application within the effective time limit under West Virginia Code § 23-4-15(b). None of
the justifications Ms. Harding gives for her late filing are sufficient to overcome the time
limitation and, because it is a condition of her right, her claim is, unfortunately, barred. The
Board of Review was correct to affirm the Order of the Office of Judges.

        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
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: May 14, 2013

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


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