STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

May 7, 2015 

RORY L. PERRY II, CLERK 

JUDY MOORE, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

WIDOW OF CURTIS R. MOORE, 

Claimant Below, Petitioner 

vs.) No. 14-0773	 (BOR Appeal No. 2049235) 

(Claim No. 2012037803) 

AKER OIL AND GAS US, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Judy Moore, widow of Curtis R. Moore, by Cathy Greiner, her attorney, 

appeals the decision of the West Virginia Workers’ Compensation Board of Review. Aker Oil 

and Gas US, LLC, by Daniel Murdock, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated July 7, 2014, in which 

the Board affirmed a January 31, 2014, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges modified the claims administrator’s September 5, 2012, 

decision denying Ms. Moore’s claim for dependent’s benefits. 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. Moore passed away on June 29, 2011, with a cause of death listed as mesothelioma. 

Following the decedent’s death, Ms. Moore filed an application for dependent’s benefits. On 

September 5, 2012, the claims administrator denied Ms. Moore’s application for dependent’s 

benefits on a non-medical basis. On January 31, 2014, the Office of Judges modified the claims 

administrator’s decision to reflect that Ms. Moore’s application for dependent’s benefits was 

denied because it was not shown that the decedent was exposed to the hazards of occupational 

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pneumoconiosis in the State of West Virginia over a continuous period of not less than two years 

during the ten years immediately preceding the date of last exposure to such hazards, or for any 

five of the fifteen years immediately preceding the date of last exposure. On July 7, 2014, the 

Board of Review affirmed the Office of Judges’ Order and noted that although Ms. Moore 

asserts that the claim should be processed as an occupational disease claim rather than a claim 

for occupational pneumoconiosis, the processing of the claim as an occupational disease claim 

would not affect the outcome of Ms. Moore’s appeal of the denial of her application for 

dependent’s benefits. On appeal to this Court, Ms. Moore again argues that the Office of Judges 

improperly analyzed the claim utilizing a standard applicable to occupational pneumoconiosis. 

West Virginia Code § 23-4-1(b) (2008) provides: 

That compensation shall not be payable for the disease of occupational 

pneumoconiosis, or death resulting from the disease, unless the employee has 

been exposed to the hazards of occupational pneumoconiosis in the State of West 

Virginia over a continuous period of not less than two years during the ten years 

immediately preceding the date of his or her last exposure to such hazards, or for 

any five of the fifteen years immediately preceding the date of his or her last 

exposure. 

Further, West Virginia Code § 23-4-1(d) (2008) provides: 

The term ‘occupational pneumoconiosis’ includes, but is not limited to, such 

diseases as silicosis, anthracosilicosis, coal worker’s pneumoconiosis, commonly 

known as black lung or miner’s asthma, silico-tuberculosis (silicosis accompanied 

by active tuberculosis of the lungs), coal worker’s pneumoconiosis accompanied 

by active tuberculosis, asbestosis, siderosis, anthrax, and any and all other dust 

diseases of the lungs and conditions and diseases caused by occupational 

pneumoconiosis which are not specifically designated in this section meeting the 

definition of occupational pneumoconiosis set forth in this subsection. 

Ms. Moore states in her appellate brief that “[m]esothelioma is a cancer caused only by 

exposure to asbestosis [sic].” Therefore, by Ms. Moore’s own admission, her claim falls within 

the definition of occupational pneumoconiosis as provided by West Virginia Code § 23-4-1(d). 

However, regardless of whether the claim is processed as an occupational pneumoconiosis claim 

pursuant to West Virginia Code § 23-4-1(b) or an occupational disease claim pursuant to West 

Virginia Code § 23-4-1(f) (2008), Ms. Moore has failed to provide any evidence demonstrating 

that the decedent was exposed to asbestos during the course of his employment in the State of 

West Virginia. The evidence provided in support of Ms. Moore’s appeal establishes only that the 

decedent’s cause of death was mesothelioma and that he was a former employee of Aker Oil and 

Gas. Evidence regarding the decedent’s work environment or specific occupation was not 

provided. Therefore, Ms. Moore has failed to demonstrate that the decedent was exposed to the 

hazards of occupational pneumoconiosis consistent with the provisions of West Virginia Code § 

23-4-1(b) or, in the alternative, has failed to demonstrate that he incurred an occupational disease 

which caused his death consistent with the provisions of West Virginia Code § 23-4-1(f). 

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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 7, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Brent D. Benjamin 

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