HOBERT L. PHILLIPS SR., Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER Commissioner Below, Respondent and SUMMERS COUNTY BOARD OF EDUCATION, Employer Below, Respondent
Appeal Nos. 2051119 and 2051120, Claim Nos. 2015022347 and
Hobert L. Phillips Sr., pro se, appeals the decision of the
West Virginia Workers' Compensation Board of Review. West
Virginia Office of Insurance Commissioner, by Noah A. Barnes,
its attorney, filed a timely response.
issue on appeal is two-part. The first issue is whether
occupational pneumoconiosis should be held a compensable
component of the claim, and the second is whether an
occupational disease should be held a compensable component
of the claim. This appeal originated from two separate claims
administrator's decisions dated May 29, 2015, which
denied claims for both occupational pneumoconiosis and
occupational disease. In two separate orders dated February
16, 2016, Order, the Workers' Compensation Office of
Judges affirmed both decisions. The Board of Review's
Final Orders each dated June 9, 2016, affirmed the Orders of
the Office of Judges. The Court has carefully reviewed the
records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.
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
L. Phillips, Sr., a former janitor, filed a claim for
benefits for occupational pneumoconiosis on February 24,
2015, and a claim for benefits regarding an occupational
disease on March 19, 2015. After commencing with this claim,
Mr. Phillips passed away. His wife, Margaret Phillips,
continues with his claim.
Phillips was a janitor with the Summers County Board of
Education from 1973 until January 19, 1995. The majority of
that time was spent at Pipestem Elementary School. It was
determined that the school's floor tiles contained
asbestos. Mr. Phillips alleged that he developed occupational
pneumoconiosis as a result of scraping up the tiles and
inhaling the fibers. He filed his first claim in September of
1997. The claim was held compensable for occupational
pneumoconiosis on a nonmedical basis subject to the
presumption under West Virginia Code §23-4-8c(d).
February 24, 1998, Mr. Phillips underwent an examination by
the Occupational Pneumoconiosis Board. The Board noted that
Mr. Phillips had experienced shortness of breath for twelve
to fifteen years with a mild cough productive of white
sputum. The films were negative for occupational
pneumoconiosis. Based upon its findings, the Board concluded
that Mr. Phillips did not have occupational pneumoconiosis,
nor did he have any pulmonary impairment which could be
attributed to his employment. The claims administrator
granted no award based upon the findings of the Board. The
Office of Judges affirmed the decision on August 20, 1999.
The Workers' Compensation Appeal Board affirmed the
Office of Judges' Order on December 31, 1999. This Court
then refused to hear Mr. Phillip's appeal and affirmed
the decision on January 5, 2000.
Phillips continued to suffer shortness of breath and was
eventually diagnosed with chronic obstructive pulmonary
disease, congestive heart failure, cardiac arrhythmia,
silicosis, lung disease, and a collapsed lung. Mr. Phillips
subsequently filed the instant two claims in 2015. Mr.
Phillips wrote a letter describing how he was exposed to dust
and chemicals from 1973 through 1995. He attributed his need
for breathing and heart medication, as well as the use of
oxygen, to his prior employment. He also attributed his
bladder cancer to his occupational exposure.
claims administrator rejected each claim in separate Orders
on May 29, 2015. Regarding the claim for occupational
pneumoconiosis, the claims administrator rejected the claim
pursuant to West Virginia Code 23-4-1(d) (2008),
§23-4-15 (2010), and §23-4-15(b) (2009). The claims
administrator stated that Mr. Phillips listed his last date
of exposure as January 18, 1995and had not experienced any
additional exposure since that time. Thus, this claim was
considered a duplicate of the prior claim and was denied on
the basis of no additional exposure. Regarding the claim for
occupational disease, the claims administrator rejected the
claim as having been untimely filed.
February 16, 2016, the Office of Judges issued two separate
Orders regarding Mr. Phillips's claims. Regarding the
claim for occupational pneumoconiosis, the Office of Judges
stated that pursuant to West Virginia Code §23-4-15(b),
an individual must experience at least sixty additional days
of exposure to the hazards of abnormal quantities of dust in
order to file a new claim. It noted that this claim is
identical to the claim filed in 1997 as no additional
exposure has occurred. The evidence repeatedly established
that Mr. Phillips was last exposed to the hazards of
occupational pneumoconiosis on January 19, 1995. He was not
exposed to any additional hazards beyond that date, and the
Office of Judges rejected the claim. Regarding the claim for
occupational disease, the Office of Judges noted that Mr.
Phillips and Mrs. Phillips alleged that Mr. Phillips likely
contracted bladder cancer from the asbestos exposure.
However, there is no medical evidence to support this belief
as no medical evidence regarding Mr. Phillip's bladder
cancer was ever submitted. Mr. Phillips also attributed his
lung disease to the exposure. However, the claims
administrator showed that Mr. Phillips was aware of his lung
condition as early as 1994. His last day of exposure was in
1995, and he subsequently filed his occupational
pneumoconiosis claim in 1997. Thus, the Office of Judges
noted it was a reasonable implication that the claim was not
timely filed under West Virginia Code §23-4-15(c).
Accordingly, it found that there was no evidence to establish
that Mr. Phillips suffered from a disease attributable to his
occupation or that the claim was timely filed.
Board of Review authored two separate decisions on June 9,
2016. The Board of Review affirmed the Office of Judges'
Order rejecting the claim for occupational pneumoconiosis but
declined to adopt the reasoning. Rather, the Board of Review
rejected the claim because Mr. Phillips did not meet the
requirements set forth in West Virginia Code
§23-4-15(c). Because this claim was not filed within
three years from the date of last exposure, the Board of
Review noted that it must be filed within three years from
and after a diagnosed impairment due to occupational
pneumoconiosis was made known to Mr. Phillips by a physician.
In the prior claim, no award was granted because the
Occupational Pneumoconiosis Board did not make a diagnosis of
occupational pneumoconiosis. In this new claim, the evidence
does not establish that a diagnosed impairment due to
occupational pneumoconiosis was made known to Mr. Phillips by
a physician. Thus, the Board of Review affirmed the rejection
of the claim. Regarding the claim for an occupational
disease, the Board of Review adopted the reasoning and
conclusions of the Office of Judges and affirmed its Order.
agree with the reasoning and conclusions of the Office of
Judges. Mr. Phillips was last exposed to an occupational
hazard on January 19, 1995. Both of his claims fail under
West Virginia Code §23-4-15(c) as the three year time
limit imposed in any of the scenarios has long passed.
Further, there is no medical evidence to support a finding of
either occupational pneumoconiosis or an occupational
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 ...