                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 1, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOSEPH A. VANMETER,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0093 (BOR Appeal No. 2046162)
                   (Claim No. 2010135293)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

DENZIL CONSTRUCTION/FENTON RIGGING,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Joseph A. Vanmeter, by Edwin Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Jack Rife, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated December 23, 2011, in
which the Board affirmed a June 22, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 27,
2010, decision rejecting Mr. Vanmeter’s claim for occupational pneumoconiosis 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.

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       Mr. Vanmeter worked as a laborer for various employers until 2006. On April 22, 2010,
Mr. Vanmeter filed an application for occupational pneumoconiosis benefits with a date of last
exposure of November of 2006. The claims administrator rejected Mr. Vanmeter’s application
for benefits because it found that the actual date of last exposure was August 31, 1998, under
West Virginia Code § 23-4-15(b) (2010), and Mr. Vanmeter had not met the exposure
requirement in West Virginia Code § 23-4-1(2008).

        The Office of Judges affirmed the claims administrator’s decision, and held that Mr.
Vanmeter failed to demonstrate that he met the exposure requirements for consideration of
occupational pneumoconiosis benefits. West Virginia Code § 23-4-1 requires exposure to the
hazards of occupational pneumoconiosis in West Virginia over a continuous period of not less
than two years during the last ten years immediately preceding the date of his last exposure to
such hazards, or for any five of fifteen years immediately preceding the date of such last
exposure. The Office of Judges noted that Mr. Vanmeter had the opportunity to present evidence
in support of his claim, but his evidence only confirmed the findings supporting the rejection of
his claim because the evidence demonstrates that he failed to meet the exposure requirement.
The Board of Review reached the same reasoned conclusions in its decision of December 23,
2011. We agree with the reasoning and conclusions of 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: November 1, 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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