                                    STATE OF WEST VIRGINIA

                                SUPREME COURT OF APPEALS
                                                                                                      FILED
DAVID SHAPLEY,                                                                                     March 3, 2017
                                                                                               RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                                   SUPREME COURT OF APPEALS
                                                                                                 OF WEST VIRGINIA

vs.)     No. 16-0197 (BOR Appeal No. 2050834)
                      (Claim No. 2015014380)

MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent


                                    MEMORANDUM DECISION
      Petitioner David Shapley, by M. Jane Glauser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Murray American Energy, Inc., by
Aimee M. Stern, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 9, 2016, in
which the Board affirmed the September 10, 2015, Order of the Workers’ Compensation Office
of Judges. In its Order, the Office of Judges affirmed the claims administrator’s
December 12, 2014, decision to deny Mr. Shapley’s application 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.

        Mr. Shapley, a coal miner, started working for Murray American Energy, Inc., on
November 14, 2011.1 On October 22, 2013, Mr. Shapley sustained a head injury while working,
and thereafter stopped working for Murray American Energy, Inc.2,3 On August 12, 2014, Mr.
Shapley submitted an employee’s report of occupational pneumoconiosis. The request for
benefits did not include a medical report establishing he had been diagnosed with occupational

1
  This is the start date provided by the employer. The start date is inconsistent throughout the evidence submitted.
2
  This is the date Mr. Shapley stated he quit working. The date is inconsistent throughout the evidence submitted.
3
  A separate report of injury was completed for the head injury. That injury is not at issue in this appeal.
                                                            1
pneumoconiosis. Mr. Shapley stated that he was exposed to the hazards of occupational
pneumoconiosis while he was employed with Murray American Energy, Inc. However, he did
not indicate how long he had been exposed to the hazards while working in West Virginia. The
list of exposures at prior employers included exposure in the state of Ohio when he worked for
Lesco from 1996 to 2002, and Century for four months in 2011, with a last date of employment
of November 9, 2011. The claims administrator denied the application on December 12, 2014,
due to noncompliance with the statutory exposure. Mr. Shapley’s protest followed.

        Attila Lenkey, M.D., performed an occupational lung disease evaluation on August 28,
2014. Mr. Shapley denied any real shortness of breath. He had no cough and no wheezing. The
pulmonary function test was within normal limits. Dr. Lenkey found insufficient evidence to
suggest any occupational lung disease. On November 3, 2014, Dr. Lenkey noted in an addendum
that the chest x-ray she requested was negative for pneumoconiosis. In Dr. Lenkey’s opinion,
there was insufficient evidence to support an occupationally related lung disease.

         On December 1, 2014, Mr. Shapley completed a medical and employment history form at
the request of the claims administrator. On the medical history, Mr. Shapley noted he had never
had any breathing studies or consulted a physician regarding problems with breathing. His work
history included working as a laborer at a sawmill for about six years; as a plant operator at a
fertilizer factory for about nine years; as a truck driver delivering food for about eight years, and
then as a coal miner for about four months in 2011. All of his previous employment was in Ohio.

       The Office of Judges affirmed the decision of the claims adjuster on September 10, 2015.
It noted that West Virginia Code §23-4-1(b) (2005) requires exposure 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 year period immediately preceding the date of last exposure. The
Office of Judges determined Mr. Shapley had been exposed to the hazard of coal dust
immediately prior to his date of last exposure from July 10, 2011 through October 22, 2013.
However, for four of those months Mr. Shapley worked in Ohio. Therefore, the Office of Judges
found that Mr. Shapley did not meet the minimum exposure requirements. The Board of Review
affirmed the Order of the Office of Judges on February 9, 2016.

        After review, we agree with the findings of fact of the Office of Judges and conclusions
of law of the Board of Review. Mr. Shapley worked in West Virginia for Murray American
Energy, Inc., from November 14, 2011, to October 22, 2013, which is less than a two year
period. On October 22, 2013, Mr. Shapley sustained a head trauma. As a result of that injury, he
was unable to continue working for the continuous two year period required by the statute.
Despite the fact that he did not have the requisite period of exposure in West Virginia, he moved
forward with his application for benefits. Mr. Shapley failed to submit any medical evidence in
support of his occupational pneumoconiosis application. The only medical evidence before the
Court, an occupational lung disease evaluation performed by Dr. Lenkey, revealed insufficient
evidence to suggest an occupational lung disease. Additionally, Mr. Shapley acknowledged he
did not have any breathing problems, nor had he consulted a physician in regard to a breathing
problem.

                                                 2
        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: March 3, 2017

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




                                                3
