Moore v. Aker Oil and Gas US, LLC, W Va: Supreme Court of Appeals 2015 (2015)

Our plain-English summary of Moore v. Aker Oil and Gas US, LLC, W Va: Supreme Court of Appeals 2015 (West Virginia Supreme Court of Appeals, May 7, 2015).

Judy Moore, widow of Curtis R. Moore, sought dependent's benefits from the West Virginia workers' compensation system after her husband died on June 29, 2011. His death certificate listed the cause as mesothelioma, and he had been an employee of Aker Oil and Gas US, LLC. The claims administrator denied the claim. The Office of Judges modified that decision to say the claim failed because it was not shown that he was exposed to occupational pneumoconiosis hazards in West Virginia for the period the statute requires. The Board of Review affirmed. Ms. Moore argued on appeal that her claim should have been analyzed as an occupational disease claim rather than an occupational pneumoconiosis claim. The West Virginia Supreme Court of Appeals noted her own brief said mesothelioma is caused only by asbestos, which put the claim within the statutory pneumoconiosis definition. It held that under either approach she had not shown that her husband was exposed to asbestos during his West Virginia employment. The record showed only the cause of death and his past employment, with nothing about his work environment or occupation. The court affirmed. One justice dissented without a written opinion.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: West Virginia Supreme Court of Appeals
• Decided: May 7, 2015
• Docket: No. 14-0773
• Stage: Appeal from workers' compensation or benefits
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: West Virginia

Outcome. The court affirmed the Board of Review's order, which upheld the denial of Judy Moore's claim for dependent's benefits against Aker Oil and Gas US, LLC, because she offered no evidence that her husband was exposed to asbestos at work in West Virginia.

What the court held. A claimant seeking dependent's benefits for a death from mesothelioma must show the decedent was exposed to asbestos hazards in the course of employment in West Virginia, whether the claim is treated as occupational pneumoconiosis or as an occupational disease.

Issues decided: Wrongful Death and Survival, Employer and Contractor Liability, and Workers' Compensation.

The people and their exposure

• Curtis R. Moore: mesothelioma; died

The defendants

• Aker Oil and Gas US, LLC (employer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

JUDY MOORE, WIDOW OF CURTIS R. MOORE, Claimant Below, Petitioner

v.

AKER OIL AND GAS US, LLC, Employer Below, Respondent

No. 14-0773.

Filed: May 7, 2015.

Supreme Court of Appeals of West Virginia.

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 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).

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.

Chief Justice Margaret L. Workman, Justice Robin J. Davis, Justice Menis E. Ketchum and Justice Allen H. Loughry II, concurred.

Justice Brent D. Benjamin, DISSENTING.

Sources

• The opinion on Google Scholar
• West Virginia asbestos laws
• West Virginia asbestos exposure sites