                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 24, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
KENNETH TUCKER,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1169 (BOR Appeal No. 2047182)
                   (Claim No. 2011041749)

CONSOLIDATION COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Kenneth Tucker, by Robert Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by
Edward George III, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 4, 2012, in
which the Board affirmed an April 9, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 11, 2011,
decision which rejected the application for benefits as a duplicate of prior claim number
830063189. 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. Tucker, a coal miner, developed occupational pneumoconiosis in the course of his
employment as the result of exposure to hazardous dust. Mr. Tucker’s last date of employment
and exposure was May 19, 1983. On July 19, 1984, his claim was held compensable on a non­
medical basis in claim number 830063189. There is no indication in the record of the
Occupational Pneumoconiosis Board’s findings. Mr. Tucker again filed for benefits in 2011. The
physician’s report of occupational pneumoconiosis indicated that Mr. Tucker suffered from 15%

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to 20% lung impairment with 10% of that impairment being directly attributable to occupational
pneumoconiosis.

        The claims administrator rejected the application for benefits on July 11, 2011, on the
basis that the claim was a duplicate of Mr. Tucker’s prior claim. The Office of Judges affirmed
the claims administrator’s decision in its April 9, 2012, Order. It found that the evidentiary
record in this case contains no indication of the Occupational Pneumoconiosis Board’s findings
in claim number 830063189. It held that Mr. Tucker simply filed two applications for
occupational pneumoconiosis benefits, because the date of last exposure was the same and no
additional exposure was alleged.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 4, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. Mr. Tucker has alleged no additional
exposure since he last filed for occupational pneumoconiosis benefits. His application is
therefore a duplicate of his previous request.

        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: April 24, 2014

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




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