                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                 FILED
CLINTON DAUGHERTY,                                                               May 16, 2013
Claimant Below, Petitioner                                                  RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1275 (BOR Appeal No. 2045535)
                   (Claim No. 2011005869)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PRECISION MINING, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Clinton Daugherty, by Anne L. Wandling, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Insurance Commissioner of West
Virginia in its capacity as Administrator of the old fund, by Brandolyn N. Felton-Ernest, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 29, 2011, in
which the Board affirmed a January 26, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 19, 2010,
order. 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.

       In this case, Mr. Clinton Daugherty worked as a heavy equipment operator at surface coal
mines from 1971 until April 27, 2004. On July 16, 2009, Mr. Daugherty was diagnosed with
                                                1
hearing loss in both ears and filed a claim for occupational hearing loss due to noise induced
hearing loss. In his claim application for occupational hearing loss, Mr. Daugherty stated that he
was first made aware of his noise induced hearing loss in the late 1970s or early 1980s. The
claims administrator denied Mr. Daugherty’s claim as being untimely filed. Mr. Daugherty
appeals arguing that his claim was timely filed.

        On July 16, 2009, Mr. Daugherty put on his initial application that he was aware that he
had noise-induced hearing loss in the late 1970s or early 1980s. Mr. Daugherty was last exposed
to the noise of the machinery at work on April 27, 2004. Dr. Joseph Touma completed the
physician’s section of the application, reporting that Mr. Daugherty had 150 decibels loss on the
right and 155 decibels loss on the left.

         The Office of Judges found the claimant’s case similar to Holdren v. Workers’
Compensation Commissioner, 181 W.Va. 337, 382 S.E.2d 531 (1989), where the Court found
that “…the legislature intended the second and third phrases to be considered as two parts of a
single element…the date of last exposure and either the date of the physician’s diagnosis or the
date the claimant should reasonably have known of the occupational disease.” In Holdren, the
Court found that the claimant actually knew or reasonably should have known of his
occupational hearing loss when he was asked if suspected the problem with his hearing many
years before was due to noise of the machinery at work and he answered, “I figure it contributed
to it a lot.” Id. The Court then found that the claimant’s claim had been untimely filed. Id.

        The Office of Judges found that Mr. Daugherty reasonably should have known or
actually did know that he had a noise-induced hearing loss years before his date of last exposure
and several years before he filed this claim for occupational hearing loss. According to the
claimant’s testimony the only source of noise was his employment.

        The Office of Judges ruled that Mr. Daugherty’s claim was not timely filed within three
years of the day that he reasonably should have known that he had noise induced hearing loss.
The Board of Review reached the same conclusion. We agree that Mr. Daugherty’s claim was
not timely filed.

        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 16, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis

                                                2
Justice Margaret L. Workman

Justice Allen H. Loughry II


DISSENTING:
Justice Menis E. Ketchum




                               3
