Noretta Mobley, Widow v. W. Va. Office of Insurance Commissioner/Pittston Coal

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED
February 20, 2013

RORY L. PERRY II, CLERK

NORETTA MOBLEY, WIDOW OF SUPREME COURT OF APPEALS

OF WEST VIRGINIA
SAMUEL MOBLEY,
Claimant Below, Petitioner

vs.) No. 11-0842 (BOR Appeal No. 2045204)
(Claim No. 2008044194)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PITTSTON COAL,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Noretta Mobley, by John Skaggs, her attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Mary Rich Maloy, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated April 26, 2011, in
which the Board affirmed a September 27, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 19,
2008, decision denying Ms. Mobley’s application 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.
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 Samuel Mobley worked for various employers as a construction worker. He stopped
working in 1989 due to a back injury, and received a permanent total disability award. In 1996,
Samuel and Noretta Mobley were married. Mr. Mobley passed away in 2007. Subsequently, Ms.
Mobley filed an application for dependent’s benefits, alleging that Mr. Mobley suffered from
occupational pneumoconiosis. The claims administrator denied Ms. Mobley’s application for
dependent’s benefits on September 19, 2008.

The Office of Judges affirmed the claims administrator’s Order and found that the
preponderance of the evidence did not establish that Ms. Mobley is entitled to dependent’s
benefits because the evidence did not demonstrate that Mr. Mobley suffered from occupational
pneumoconiosis.

West Virginia Code § 23-4-1(b) (2008) states that in order to be eligible for workers’
compensation benefits related to occupational pneumoconiosis, a claimant must have been
exposed to the “hazards of occupational pneumoconiosis.” In Meadows v. Workmen’s
Compensation Com’r, 157 W.Va. 140, 145, 198 S.E.2d 137, 139 (1973), this Court held that “a
‘hazard,’ as contemplated by the statute, consists of any condition where it can be demonstrated
that there are minute particles of dust in abnormal quantities in the work area.” In Sluss v.
Workers’ Compensation Com’r, 174 W.Va. 433, 436, 327 S.E.2d 413, 415 (1985), this Court
rejected the proposition that a claimant can demonstrate exposure merely by employment at a
dusty location, such as a mine site, and reiterated the holding in Meadows that a claimant must
demonstrate the presence of a hazard through a showing that “minute particles of dust exist in
abnormal quantities in the work area.”

In its Order, the Office of Judges held that the evidence did not establish that the dust
exposure prerequisite had been met. The Board of Review reached the same reasoned
conclusions in its decision of April 26, 2011. Further, in Bradford v. Workers’ Compensation
Com’r, Syl. Pt. 3, 185 W.Va. 434, 408 S.E.2d 13 (1991), this Court held that in order to establish
entitlement to dependent’s benefits, a claimant must show that an occupational disease or injury
“contributed in any material degree to the death.” The record lacks evidence relating Mr.
Mobley’s death to occupational pneumoconiosis in any material degree. Therefore, we agree
with the reasoning and conclusions of the Board of Review.

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: February 20, 2013

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CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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