STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

April 24, 2014 

RORY L. PERRY II, CLERK 

KENNETH TUCKER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-1169 (BOR Appeal No. 2047182) 

(Claim No. 2011041749) 

CONSOLIDATION COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Kenneth Tucker, by Robert Stultz, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by 

Edward George III, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 4, 2012, in 

which the Board affirmed an April 9, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 11, 2011, 

decision which rejected the application for benefits as a duplicate of prior claim number 

830063189. 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. Tucker, a coal miner, developed occupational pneumoconiosis in the course of his 

employment as the result of exposure to hazardous dust. Mr. Tucker’s last date of employment 

and exposure was May 19, 1983. On July 19, 1984, his claim was held compensable on a nonmedical basis in claim number 830063189. There is no indication in the record of the 

Occupational Pneumoconiosis Board’s findings. Mr. Tucker again filed for benefits in 2011. The 

physician’s report of occupational pneumoconiosis indicated that Mr. Tucker suffered from 15% 

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to 20% lung impairment with 10% of that impairment being directly attributable to occupational 

pneumoconiosis. 

The claims administrator rejected the application for benefits on July 11, 2011, on the 

basis that the claim was a duplicate of Mr. Tucker’s prior claim. The Office of Judges affirmed 

the claims administrator’s decision in its April 9, 2012, Order. It found that the evidentiary 

record in this case contains no indication of the Occupational Pneumoconiosis Board’s findings 

in claim number 830063189. It held that Mr. Tucker simply filed two applications for 

occupational pneumoconiosis benefits, because the date of last exposure was the same and no 

additional exposure was alleged. 

The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and affirmed its Order in its September 4, 2012, decision. This Court agrees with the 

reasoning and conclusions of the Board of Review. Mr. Tucker has alleged no additional 

exposure since he last filed for occupational pneumoconiosis benefits. His application is 

therefore a duplicate of his previous request. 

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: April 24, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret J. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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