                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
GEORGE TOLER,                                                                    February 3, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0236	 (BOR Appeal No. 2050699)
                   (Claim No. 2009095780)


ARGUS ENERGY WV,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner George Toler, by Wendle Cook, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Argus Energy WV, by Sean Harter, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 9, 2016, in
which the Board affirmed a July 28, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 30,
2014, decision denying Mr. Toler’s request to reopen his claim for further consideration of
permanent partial disability benefits.1 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.

      At the outset, we note that the evidentiary record is exceedingly limited with regard to
Mr. Toler’s initial claim for workers’ compensation benefits following his diagnosis with

1
 For the purposes of this appeal, the phrase “claims administrator” refers to Argonaut Insurance
Company. However, we note that Argonaut Insurance Company is no longer Argus Energy’s
workers’ compensation insurance provider.
                                                1
occupational pneumoconiosis. Likewise, the record does not contain any information regarding
his early treatment. However, it is clear that Mr. Toler received a 10% permanent partial
disability award for occupational pneumoconiosis on December 18, 2009.2 Presently, Mr. Toler
is requesting that his claim be reopened for further consideration of a permanent partial disability
award.3 In support of his appeal, Mr. Toler submitted a February 28, 2012, chest CT scan
indicating the presence of worsening interstitial disease with progressive massive fibrosis; a
December 18, 2012, plethysmograph report which does not contain any comments or comparison
to prior studies; and a December 17, 2014, Physician’s Occupational Pneumoconiosis Report in
which Mr. Toler was diagnosed with occupational pneumoconiosis with progressive massive
fibrosis, shortness of breath, a cough, and wheezing.

        On December 30, 2014, Argonaut Insurance Company issued a decision informing Mr.
Toler that it was not Argus Energy’s workers’ compensation insurer on his most recent date of
last exposure to the hazards of occupational pneumoconiosis, namely February 25, 2010, and
recommending that he contact Argus Energy in order to file a claim with the appropriate
workers’ compensation insurance carrier. However, Mr. Toler appealed the December 30, 2014,
decision to the Office of Judges. The Office of Judges acknowledged Mr. Toler’s protest of the
December 30, 2014, decision and seemingly interpreted the decision as a denial of Mr. Toler’s
request to reopen his claim for further consideration of a permanent partial disability award. In
its decision affirming Argonaut Insurance Company’s December 30, 2014, decision, the Office
of Judges held that Mr. Toler failed to establish that he sustained an aggravation or progression
of his compensable condition sufficient to entitle him to an additional permanent partial
disability award. The Board of Review affirmed the reasoning and conclusions of the Office of
Judges in its decision dated February 9, 2016. On appeal, Mr. Toler asserts that the evidence of
record demonstrates that he is suffering from worsening occupational pneumoconiosis and,
therefore, is entitled to an additional permanent partial disability award.



2
  Mr. Toler initially protested this decision, but subsequently withdrew his protest on October 18,
2010.
3
  It is also noteworthy that Mr. Toler filed his request to reopen his claim with Argonaut
Insurance Company. Although Argonaut Insurance Company issued the prior 10% permanent
partial disability award received by Mr. Toler, Argus Energy’s workers’ compensation insurance
policy provided by Argonaut Insurance Company expired on July 1, 2009. Following the
termination of Argonaut’s workers’ compensation insurance coverage, Brickstreet Mutual
Insurance Company provided Argus Energy with workers’ compensation insurance coverage. In
that regard, the Office of Judges determined that the date of last exposure to the hazards of
occupational pneumoconiosis under Argonaut’s insurance policy was June 11, 2009.
Additionally, the Office of Judges determined that Mr. Toler incurred additional exposure to the
hazards of occupational pneumoconiosis following the expiration of Argonaut’s insurance
coverage. Neither party disputes the Office of Judges’ findings with regard to the date of last
exposure in relation to coverage under Argonaut’s insurance policy. Additionally, neither party
disputes the Office of Judges’ findings regarding Mr. Toler’s additional exposure to the hazards
of occupational pneumoconiosis.
                                                 2
        Regarding the request to reopen Mr. Toler’s claim for further consideration of a
permanent partial disability award, the Office of Judges looked to West Virginia Code § 23-5-3
(2009), which provides that in order to be eligible for a reopening of the claim, a claimant must
demonstrate that a progression or aggravation of a compensable condition has occurred or, in the
alternative, that a fact or facts not previously considered and which would entitle him to greater
benefits than those already received exists. As was previously noted, the Office of Judges
determined that Mr. Toler’s date of last exposure to the hazards of occupational pneumoconiosis
with respect to workers’ compensation insurance coverage provided by Argonaut Insurance
Company was June 11, 2009. The Office of Judges then found that the record does not contain
any evidence linking the reports of progressively worsening fibrosis to the exposure to the
hazards of occupational pneumoconiosis Mr. Toler incurred prior to June 11, 2009. Further, the
Office of Judges noted that establishing a link between the progressively worsening fibrosis and
exposure to the hazards of occupational pneumoconiosis prior to June 11, 2009, is critical
because it is undisputed that Mr. Toler incurred additional exposure to the hazards of
occupational pneumoconiosis following the expiration of workers’ compensation insurance
coverage provided by Argonaut Insurance Company. Finally, the Office of Judges determined
that the medical evidence of record, which is dated more than two years after Mr. Toler incurred
additional exposure to the hazards of occupational pneumoconiosis while his employer was
covered by a new workers’ compensation insurance policy, fails to establish that he sustained an
aggravation or progression of his compensable condition as related to exposure to the hazards of
occupational pneumoconiosis prior to June 11, 2009. We agree with the reasoning and
conclusions of the Office of Judges, as affirmed by the Board of Review.

        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: February 3, 2017

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




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