                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JUDY MOORE,                                                                   OF WEST VIRGINIA

WIDOW OF CURTIS R. MOORE,
Claimant Below, Petitioner

vs.)   No. 14-0773	 (BOR Appeal No. 2049235)
                   (Claim No. 2012037803)

AKER OIL AND GAS US, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Judy Moore, widow of Curtis R. Moore, by Cathy Greiner, her attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. Aker Oil
and Gas US, LLC, by Daniel Murdock, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 7, 2014, in which
the Board affirmed a January 31, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges modified the claims administrator’s September 5, 2012,
decision denying Ms. Moore’s claim for dependent’s benefits. 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. Moore passed away on June 29, 2011, with a cause of death listed as mesothelioma.
Following the decedent’s death, Ms. Moore filed an application for dependent’s benefits. On
September 5, 2012, the claims administrator denied Ms. Moore’s application for dependent’s
benefits on a non-medical basis. On January 31, 2014, the Office of Judges modified the claims
administrator’s decision to reflect that Ms. Moore’s application for dependent’s benefits was
denied because it was not shown that the decedent was exposed to the hazards of occupational
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pneumoconiosis in the State of West Virginia over a continuous period of not less than two years
during the ten years immediately preceding the date of last exposure to such hazards, or for any
five of the fifteen years immediately preceding the date of last exposure. On July 7, 2014, the
Board of Review affirmed the Office of Judges’ Order and noted that although Ms. Moore
asserts that the claim should be processed as an occupational disease claim rather than a claim
for occupational pneumoconiosis, the processing of the claim as an occupational disease claim
would not affect the outcome of Ms. Moore’s appeal of the denial of her application for
dependent’s benefits. On appeal to this Court, Ms. Moore again argues that the Office of Judges
improperly analyzed the claim utilizing a standard applicable to occupational pneumoconiosis.

       West Virginia Code § 23-4-1(b) (2008) provides:

       That compensation shall not be 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 ten years
       immediately preceding the date of his or her last exposure to such hazards, or for
       any five of the fifteen years immediately preceding the date of his or her last
       exposure.

       Further, West Virginia Code § 23-4-1(d) (2008) provides:

       The term ‘occupational pneumoconiosis’ includes, but is not limited to, such
       diseases as silicosis, anthracosilicosis, coal worker’s pneumoconiosis, commonly
       known as black lung or miner’s asthma, silico-tuberculosis (silicosis accompanied
       by active tuberculosis of the lungs), coal worker’s pneumoconiosis accompanied
       by active tuberculosis, asbestosis, siderosis, anthrax, and any and all other dust
       diseases of the lungs and conditions and diseases caused by occupational
       pneumoconiosis which are not specifically designated in this section meeting the
       definition of occupational pneumoconiosis set forth in this subsection.

        Ms. Moore states in her appellate brief that “[m]esothelioma is a cancer caused only by
exposure to asbestosis [sic].” Therefore, by Ms. Moore’s own admission, her claim falls within
the definition of occupational pneumoconiosis as provided by West Virginia Code § 23-4-1(d).
However, regardless of whether the claim is processed as an occupational pneumoconiosis claim
pursuant to West Virginia Code § 23-4-1(b) or an occupational disease claim pursuant to West
Virginia Code § 23-4-1(f) (2008), Ms. Moore has failed to provide any evidence demonstrating
that the decedent was exposed to asbestos during the course of his employment in the State of
West Virginia. The evidence provided in support of Ms. Moore’s appeal establishes only that the
decedent’s cause of death was mesothelioma and that he was a former employee of Aker Oil and
Gas. Evidence regarding the decedent’s work environment or specific occupation was not
provided. Therefore, Ms. Moore has failed to demonstrate that the decedent was exposed to the
hazards of occupational pneumoconiosis consistent with the provisions of West Virginia Code §
23-4-1(b) or, in the alternative, has failed to demonstrate that he incurred an occupational disease
which caused his death consistent with the provisions of West Virginia Code § 23-4-1(f).
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        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 7, 2015

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

DISSENTING:
Justice Brent D. Benjamin




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