STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 4, 2015 

RORY L. PERRY II, CLERK 

JAMES SLATE, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 15-0073 (BOR Appeal No. 2049611) 

(Claim No. 2013030896) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER, 

Commissioner Below, Respondent 

and 

CASEY DEVELOPMENT CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner James Slate, by Patrick K. Maroney, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance 

Commissioner, by Anna L. Faulkner, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated December 23, 2014, in 

which the Board affirmed a July 2, 2014, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s September 23, 2013, 

decision rejecting Mr. Slate’s application for workers’ compensation benefits for occupational 

pneumoconiosis. 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. Slate, a coal miner, alleges that he developed occupational pneumoconiosis in the 

course of his employment for Casey Development Corporation. In an employee’s report of 

occupational pneumoconiosis, Mr. Slate stated that he was informed on December 13, 2012, by 

Dominic Gaziano, M.D., that he had occupational pneumoconiosis. He listed various coal mining 

jobs with dust exposure from 1944 to 1984. Casey Development Corporation was listed from 

1984 to 1984. In a physician’s report of occupational pneumoconiosis, Jennifer Hadley, D.O., 

stated that Mr. Slate had coal dust exposure and that his first date of treatment was on April 22, 

2013. He complained of shortness of breath and chronic cough. 

Mr. Slate worked in coal mines for various employers for approximately twenty years. 

He testified in a deposition on April 29, 2014, that he started working in coal mines around 1944 

as a roof bolter for Valley Camp Coal Company and worked there for fifteen years. He then 

worked for Crucible Steel for three to four years as a rock driller. After that he worked for Union 

Carbide as a roof bolter. He was there for approximately four years. Mr. Slate testified that he 

was exposed to hazardous dust while he worked for all of these companies. Mr. Slate stated that 

he then worked construction where he was exposed to very little dust. He said that he filed for 

black lung benefits in the 1970s and was denied. He asserted that he now has shortness of breath 

regularly and a sometimes productive cough. 

The claims administrator rejected the application for occupational pneumoconiosis on 

September 23, 2013. It stated that the denial was due to an incomplete application. West Virginia 

Code of State Rules § 85-20-52.1 (2006) requires the claimant to file a fully completed 

occupational pneumoconiosis application which consists of the employee’s report of 

occupational pneumoconiosis, the physician’s report of occupational pneumoconiosis, an x-ray 

report, and a list of exposures. If the application is not complete, it must be rejected. The claims 

administrator stated that it requested a more specific employment history because Mr. Slate 

failed to include exposure history or details of employment. He only provided years of 

employment. The Office of Judges affirmed the claims administrator’s decision. It stated that it is 

Mr. Slate’s burden to establish his claim, and though he filed for occupational pneumoconiosis 

within the three years of the date of a diagnosed impairment, it is not clear from the record 

presented who the employer was during his last continuous period of sixty days of exposure. He 

testified in his deposition that he was last exposed to coal dust while working for Union Carbide 

in 1973. Based on the record, the Office of Judges concluded that it could not be established that 

Mr. Slate was exposed to the hazards of coal dust for sixty consecutive days while employed by 

Casey Development Corporation. Further, while the record may indicate an exposure history to 

the hazards of occupational pneumoconiosis from 1958 to 1984, it does not specify dates of 

exposure, merely years, and listed Casey Development Corporation from 1984 to 1984. The 

Office of Judges therefore held that Mr. Slate failed to provide sufficient employment and 

exposure information to establish that he met the statutory requirement found in West Virginia 

Code §§ 23-4-8c(b) (2009), 23-4-15 (2010), and 23-4-15b (2009). The Board of Review adopted 

the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on 

December 23, 2014. The Board of Review clarified that its decision applied only to Casey 

Development Corporation and does not prevent Mr. Slate from filing an application for 

occupational pneumoconiosis against other employers. 

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On appeal, Mr. Slate argues that he was exposed to coal dust while working for various 

companies for close to twenty years and therefore meets the statutory dust exposure requirements 

under West Virginia Code § 23-4-1 (2008). He asserts that he was made aware of his lung 

problems caused by dust exposure on December 13, 2012, and filed his application on April 23, 

2013, within the three year statute of limitations. The West Virginia Office of the Insurance 

Commissioner argues that Mr. Slate failed to provide any specific details or dates of employment 

during which he would have been exposed to dust hazards. 

After review, we agree with the reasoning of the Office of Judges and the conclusions of 

the Board of Review. Though he may have been exposed to hazardous dust, Mr. Slate failed to 

establish the required sixty days of continuous exposure while working for Casey Development 

Corporation that is required under West Virginia Code § 23-4-15. His claim for occupational 

pneumoconiosis while employed there must therefore be denied. 

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: November 4, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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