                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 1, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JAMES W. PRATER JR.,                                                          OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0941	 (BOR Appeal No. 2049343)
                   (Claim No. 2013021773)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

LINCOLN CONTRACTING & EQUIPMENT COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner James W. Prater Jr., by William Gallagher, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Jacqueline Hallinan, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated August 22, 2014, in
which the Board affirmed a March 28, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 23, 2013,
decision rejecting Mr. Prater’s application for workers’ compensation 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. Prater filed a Report of Occupational Hearing Loss on July 11, 2011, alleging that he
sustained mid to severe binaural sensorineural hearing loss following years of exposure to
occupational noise hazards as a result of working in proximity to heavy equipment and
construction machinery. Mr. Prater stated that his date of last employment was August 9, 2004,
and further stated that he was made aware of his hearing loss on October 4, 2010. However, on
August 10, 2011, Steven Coutras, M.D., evaluated Mr. Prater and noted that he reported a history
of hearing loss ongoing for more than fifteen years. Dr. Coutras also noted that Mr. Prater
reported a history of exposure to occupational noise hazards, and further noted that Mr. Prater
did not utilize hearing protection until approximately fifteen years ago. Further, in his sworn
answers to interrogatories provided by the West Virginia Office of the Insurance Commissioner,
Mr. Prater stated that his hearing problems began in the mid-1990s while he was employed by
Mountaineer Resources.

        The claims administrator rejected Mr. Prater’s application for workers’ compensation
benefits based upon a finding that his claim was not timely filed pursuant to West Virginia Code
§ 23-4-15(c) (2010). In its Order affirming the claims administrator’s decision, the Office of
Judges held that Mr. Prater’s application for workers’ compensation benefits was untimely filed.
The Board of Review affirmed the reasoning and conclusion of the Office of Judges. On appeal,
Mr. Prater asserts that the evidence of record demonstrates that his claim was timely filed.

        West Virginia Code § 23-4-15(c) provides that applications for workers’ compensation
benefits arising from occupational diseases other than occupational pneumoconiosis must be
filed within three years from either the date of last exposure to the particular occupational hazard
or the date on which the existence of the occupational disease was made known to the employee,
or the date on which he should have reasonably known of the existence of the disease, whichever
occurs last. The Office of Judges found that the evidence of record establishes that Mr. Prater’s
date of last exposure to occupational noise hazards was his date of last employment, namely
August 9, 2004. Further, the Office of Judges noted that Mr. Prater’s Report of Occupational
Hearing Loss was filed on July 11, 2011. The Office of Judges then determined that the
preponderance of the evidence establishes that Mr. Prater should reasonably have known that his
hearing loss was caused by occupational noise exposure prior to his date of last exposure, and
concluded that his application for workers’ compensation benefits arising from occupational
hearing loss was untimely filed pursuant to West Virginia Code § 23-4-15(c). 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: June 1, 2015

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




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