STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS 

CLINTON DAUGHERTY, 

Claimant Below, Petitioner 

FILED 

May 16, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 11-1275 (BOR Appeal No. 2045535) 

(Claim No. 2011005869) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

PRECISION MINING, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Clinton Daugherty, by Anne L. Wandling, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Insurance Commissioner of West 

Virginia in its capacity as Administrator of the old fund, by Brandolyn N. Felton-Ernest, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 29, 2011, in 

which the Board affirmed a January 26, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 19, 2010, 

order. 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. 

In this case, Mr. Clinton Daugherty worked as a heavy equipment operator at surface coal 

mines from 1971 until April 27, 2004. On July 16, 2009, Mr. Daugherty was diagnosed with 

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hearing loss in both ears and filed a claim for occupational hearing loss due to noise induced 

hearing loss. In his claim application for occupational hearing loss, Mr. Daugherty stated that he 

was first made aware of his noise induced hearing loss in the late 1970s or early 1980s. The 

claims administrator denied Mr. Daugherty’s claim as being untimely filed. Mr. Daugherty 

appeals arguing that his claim was timely filed. 

On July 16, 2009, Mr. Daugherty put on his initial application that he was aware that he 

had noise-induced hearing loss in the late 1970s or early 1980s. Mr. Daugherty was last exposed 

to the noise of the machinery at work on April 27, 2004. Dr. Joseph Touma completed the 

physician’s section of the application, reporting that Mr. Daugherty had 150 decibels loss on the 

right and 155 decibels loss on the left. 

The Office of Judges found the claimant’s case similar to Holdren v. Workers’ 

Compensation Commissioner, 181 W.Va. 337, 382 S.E.2d 531 (1989), where the Court found 

that “...the legislature intended the second and third phrases to be considered as two parts of a 

single element...the date of last exposure and either the date of the physician’s diagnosis or the 

date the claimant should reasonably have known of the occupational disease.” In Holdren, the 

Court found that the claimant actually knew or reasonably should have known of his 

occupational hearing loss when he was asked if suspected the problem with his hearing many 

years before was due to noise of the machinery at work and he answered, “I figure it contributed 

to it a lot.” Id. The Court then found that the claimant’s claim had been untimely filed. Id. 

The Office of Judges found that Mr. Daugherty reasonably should have known or 

actually did know that he had a noise-induced hearing loss years before his date of last exposure 

and several years before he filed this claim for occupational hearing loss. According to the 

claimant’s testimony the only source of noise was his employment. 

The Office of Judges ruled that Mr. Daugherty’s claim was not timely filed within three 

years of the day that he reasonably should have known that he had noise induced hearing loss. 

The Board of Review reached the same conclusion. We agree that Mr. Daugherty’s claim was 

not timely filed. 

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: May 16, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

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Justice Margaret L. Workman
 

Justice Allen H. Loughry II
 

DISSENTING: 

Justice Menis E. Ketchum 

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