                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

DENNIS F. ADKINS,                                                                   FILED
                                                                                  March 3, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 16-0243 (BOR Appeal No. 2050826)
                   (Claim No. 2014034653)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

UNION CARBIDE CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Dennis F. Adkins, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. West Virginia Office of Insurance
Commissioner, by Brandolyn N. Felton-Ernest, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 10, 2016, in
which the Board affirmed a September 14, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 10,
2014, decision rejecting the claim. 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.


                                                1
        Dennis F. Adkins, a former coal miner, alleges he developed occupational
pneumoconiosis due to the dust hazards he was exposed to over an eleven year period while he
worked for Union Carbide Corporation from approximately 1970 through 1981. In 1981, Mr.
Adkins was laid off from his position. He subsequently underwent a ventilartory study and chest
x-rays, which showed minimal diffuse nodularity consistent with occupational pneumoconiosis
of a low profusion. Mr. Adkins filed a claim for benefits on June 6, 1984, which was granted on
a non-medical basis on January 28, 1985.

       On April 16, 1986, additional x-rays were performed. No evidence of occupational
pneumoconiosis could be found. The Occupational Pneumoconiosis Board advised against a
diagnosis of occupational pneumoconiosis and the former Worker’s Compensation Fund granted
Mr. Adkins no award based on the recommendation.

       On December 30, 2013, Mr. Adkins underwent chest x-rays which showed simple
pneumoconiosis. He subsequently filed a claim on January 30, 2014, indicating he was last
exposed to the hazards of occupational pneumoconiosis on August 12, 1981. The claims
administrator rejected the claim on September 10, 2014, stating that it was a duplicate claim to
the one previously litigated and that Mr. Adkins had not experienced any additional exposure to
the hazards of occupational pneumoconiosis since that time.

        On September 14, 2015, the Office of Judges affirmed the claims administrator’s
decision. The Office of Judges found that the former Worker’s Compensation Fund’s argument
was persuasive. At the conclusion of the prior claim, it was determined that Mr. Adkins did not
have a diagnosis of occupational pneumoconiosis and thus would not be granted an award.
Further, it was argued that Mr. Adkins was last exposed to the hazards of occupational
pneumoconiosis in 1981. The Office of Judges determined that his 2013 claim was not timely
filed under West Virginia Code §23-4-15(b) (2005). It also found that Mr. Adkins failed to prove
that he had experienced sufficient exposure to the hazards of occupational pneumoconiosis since
his prior claim. Based on these facts, the Office of Judges affirmed the claims administrator’s
decision.

       The Board of Review affirmed the Order of the Office of Judges with modifications. The
Board of Review agreed with the findings of fact but disagreed with the Office of Judges’
reasoning. The Board of Review stated that occupational pneumoconiosis is a progressive
disease but agreed with the Office of Judges’ finding that Mr. Adkins did not timely file a claim
under West Virginia Code §23-4-15(b). Additionally, the Board of Review found the evidence
did not establish Mr. Adkins had ever been diagnosed with occupational pneumoconiosis by a
physician.

       We agree with the conclusion reached by the Board of Review. Mr. Adkins never
received a diagnosis of occupational pneumoconiosis in his first claim. He did not experience
any additional exposure since his last date of exposure in 1981. The impression of the chest x-ray
taken on December 30, 2013, was simple pneumoconiosis; however, the physician did not
comment on whether he believed it to be related to Mr. Adkins’s occupation. Further, Mr.
Adkins testified in a deposition that he regularly smoked cigarettes until 2007. The evidence
                                                2
supports the finding that Mr. Adkins did not develop occupational pneumoconiosis as a result of
his occupation with Union Carbide Corporation.

        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
