STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

WAYNE LEE, August 26, 2016 

RORY L. PERRY II, CLERK Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 15-0941 (BOR Appeal No. 2050240) 

(Claim No. 2013020557) 

AMFIRE, LLC,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Wayne Lee, by Linda Garrett, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. Amfire, LLC, by T. Jonathan Cook, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated August 27, 2015, in 

which the Board affirmed a January 27, 2015, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 5, 2013, 

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. 

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

course of and resulting from his employment. On December 6, 2012, he filed an application for 

workers’ compensation benefits in which he stated that he was diagnosed in 2006 with 

occupational pneumoconiosis by John Parker, M.D. He indicated that he had been a coal miner 

since 1975. Treatment notes indicate Mr. Lee was first diagnosed with occupational 

pneumoconiosis in 1997 by x-ray. Treatment notes by Richard Trenbath, M.D., from April to 

May of 2000 indicate Mr. Lee had occasional shortness of breath with exertion. His lungs were 

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noted to be fairly clear. He was diagnosed with occupational pneumoconiosis and chest x-ray 

abnormalities. 

An April 10, 2000, letter from the United States Department of Labor indicates Mr. Lee 

had a chest x-ray on January 4, 2000, as part of a company provided medical screening. He had 

enough occupational pneumoconiosis to be eligible for the option to work in a low dust area of a 

mine. Gregory Wagner, M.D., found that he had evidence of calcification in small 

pneumoconiotic opacities, coalescence of small pneumoconiotic opacities, and pleural 

thickening. On September 8, 2006, John Parker, M.D., noted that that Mr. Lee’s occupational 

pneumoconiosis was first seen in 1997 films and a large opacity was seen in 2006 films. The 

large opacity was consistent with complicated occupational pneumoconiosis. 

On December 23, 2008, Mr. Lee exercised his right to work in an area of the mine where 

dust concentration was lower. In January of 2009, he was transferred to a position above ground. 

On January 22, 2013, A. Mirza, M.D., completed a physician’s report of occupational 

pneumoconiosis in which he indicated Mr. Lee had been suffering from the condition for 

fourteen years. He was previously awarded a 5% permanent partial disability award. The claims 

administrator rejected the claim on December 5, 2013. 

Mr. Lee testified in a deposition on May 13, 2014, that from January of 2009 until he 

retired in March of 2013, he did outside general labor. In October of 2007, he went from being a 

miner operator to a general outside worker to be out of the dust. After January of 2009, Mr. Lee 

stated that his dust exposure varied. Coal trucks were in transit near him, he sometimes had to 

shovel belts, he only went underground once a month, he cleaned mantrips once a week, and he 

swept dust daily for a few hours. He stated that as far as he knows, dust levels were always in 

compliance. He stated that when the dust samples were taken, when he was wearing a dust 

monitor, his mine foreman told him not to sweep or do similar activities. 

The Office of Judges affirmed the claims administrator’s decision on January 27, 2015. It 

found that the record clearly shows that as an underground coal miner, the claimant was exposed 

to sufficient amounts of the hazards of occupational pneumoconiosis. However, on January 16, 

2009, he was transferred above ground to a less dusty area. Pursuant to West Virginia Code § 23­

4-15(b) (2009), an application for occupational pneumoconiosis must be filed within three years 

after the later of either the day of last continuous period of sixty days during which the employee 

was exposed to the hazards of occupational pneumoconiosis or the date a diagnosed impairment 

was made known to the employee by a physician. The Office of Judges determined that since 

Mr. Lee did not file his report of occupational pneumoconiosis until December 6, 2012, he must 

establish that he was exposed to the hazards of occupational pneumoconiosis in sufficient 

amounts for sixty continuous days up to December 6, 2009, or thereafter so as not to be time 

barred pursuant to West Virginia Code § 23-4-15(b). It was noted that Mr. Lee was informed that 

he had occupational pneumoconiosis prior to December 6, 2009. The Office of Judges concluded 

that he did not establish that he suffered sufficient exposure to overcome being time-barred. He 

testified that from January of 2009 until he retired in March of 2013, he did general outside 

work. He further testified that in October of 2007 he transferred from being a miner operator to 

general outside work to be out of the dust. Mr. Lee testified with regard to dust exposure after 

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January 2009. He stated that dust exposure varied, he only went underground about once a 

month. He cleaned mantrips once a week and swept dust every day for a few hours. He testified 

that he was not exposed to coal dust all day long and that his exposure depended on the job he 

was performing on a given day. He also stated that the dust levels were monitored and always in 

compliance; however, he did not sweep or dust when wearing a monitor. He stated that the dust 

levels were the same but he just did not sweep. The Office of Judges concluded that Mr. Lee’s 

testimony failed to establish sufficient exposure to the hazards of occupational pneumoconiosis. 

Mr. Lee submitted pictures before the Office of Judges of dust in his work area. The 

Office of Judges determined that the dust level seen in the photographs was not an everyday 

amount. Per Mr. Lee’s own testimony, the dust seen in the picture was an accumulation over a 

period of at least a week. The Office of Judges held that without further evidence, the 

photographs were not adequate evidence to show sufficient exposure to the hazards of 

occupational pneumoconiosis on a continuous basis. The Office of Judges also held that the 

diagnosis of occupational pneumoconiosis was not given substantial weight in regard to the 

required exposure time as Mr. Lee was diagnosed with occupational pneumoconiosis prior to 

doing general outside labor in January of 2009. The Office of Judges therefore concluded that his 

testimony, even coupled with the medical diagnosis of occupational pneumoconiosis, does not 

establish sufficient exposure to the hazards of occupational pneumoconiosis after December of 

2009. The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and affirmed its Order on August 27, 2015. 

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

Board of Review. Pursuant to West Virginia Code § 23-4-15(b), an application for occupational 

pneumoconiosis must be filed within three years after the later of either the day of last 

continuous period of sixty days during which the employee was exposed to the hazards of 

occupational pneumoconiosis or the date a diagnosed impairment was made known to the 

employee by a physician. The record shows that Mr. Lee was diagnosed with occupational 

pneumoconiosis as early as 1997. Since his application for benefits was not filed until December 

of 2012, he must show that he was exposed to the hazards of occupational pneumoconiosis in 

sufficient amounts for sixty continuous days up to December 6, 2009, or thereafter. Mr. Lee 

failed to establish sufficient exposure to the hazards of occupational pneumoconiosis for the 

required time period. 

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. 

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ISSUED: August 26, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Margaret L. Workman 

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