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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

CECIL R. SHREWSBURY, Claimant Below, Petitioner

vs.) No. 11-1757 (BOR Appeal No. 2045992) (Claim No. 2010137036)

T & N ELECTRIC MOTOR EXCHANGE, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Cecil R. Shrewsbury, by Reginald D. Henry, his attorney, appeals the decision of the West Virginia Workers’ Compensation Bo ard of Review. T & N Electric Motor Exchange, Inc., by Patricia A. Jennings, its attorney, filed a timely response.

This appeal arises from the Board of Revi ew’s Final Order dated November 30, 2011, in which the Board affirmed a May 24, 2011, Order of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges affi rmed the claims administrator’s June 22, 2010, decision, which rejected the claim, because air testing done during Mr. Shrewsbury’s employment demonstrated that he was not e xposed to the hazards of breathing abnormal quantities of dust. The Court has carefully re viewed the records, wr itten arguments, and appendices contained in th e 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Mr. Shrewsbury worked for T & N Electric Motor Exchange as an electric motor repairman from March 15, 2004, through June 11, 2008. After he stopped working for T & N Electric Motor Exchange, Mr. Shrewsbury filed fo r workers’ compensation benefits based on his exposure to the haza rds of occupational pneumoconios is. On June 22, 2010, the claims administrator rejected the claim. The claims ad ministrator’s decision wa s primarily based on air quality samplings which were taken by the employe r during the period in which Mr. Shrewsbury FILED

October 24, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 was employed. The claims administrator stated th at these samples demonstrated that the air quality during Mr. Shrewsbury’ s employment was in complia nce with OSHA standards for permissible exposure levels. On May 24, 2011, th e Office of Judges affirmed the claims

administrator’s decision. The Boar d of Review then affirmed th e Order of the Office of Judges on November 30, 2011, leading Mr . Shrewsbury to appeal.

The Office of Judges concluded that Mr. Shrewsbury has insufficient exposure to the hazards of breathing in abnormal quantities of dust in the course of and resulting from his employment. The Office of Judges also conclu ded that T & N Electri c Motor Exchange has proven that Mr. Shrewsbury was not exposed to abnormal quantities of dust during his employment. The Office of Judges found that T & N Electric Motor Exchange took air quality samplings on three separate occasions during th e period of Mr. Shrewsbury’s employment. The Office of Judges found that the results of each samp le were identical and were all in compliance with OSHA or industrial hygiene standards for particulate matter and other harmful substances. The Office of Judges found that these samples met the requirements of West Virginia Code of State Rules § 85-20-52.2 (2006) an d demonstrated that Mr. Shre wsbury was not exposed to the hazard of breathing abnormal quantities of dust. The Board of Review a dopted the findings of the Office of Judges and affirmed its Order.

We agree with the conclusion of the Board of Review and the findings of the Office of Judges. Mr. Shrewsbury has not de monstrated that he was exposed to the hazard of occupational pneumoconiosis for the requisite statutory periods. West Virgin ia Code § 23-4-1(b) (2008). T & N Electric Motor Exchange has presented cred ible samples demonstrating that it was in compliance with OSHA’s permissible exposure le vels for the period in which Mr. Shrewsbury worked at its facility. The only evidence Mr. Sh rewsbury has presented to demonstrate that he was exposed to the hazards of occupational pneumoconiosis is his own testimony. This is not sufficient to demonstrate that he was exposed to the hazards of occupational pneumoconiosis in light of the reco rd as a whole.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.



### ISSUED: October 24, 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