CHARLESTON – The state Supreme Court has found that the widow of a coal miner who died from occupational pneumoconiosis could not collect benefits because her claim was filed four and a half months after the allowable time period for filing had expired.

The unanimous Court filed the memorandum opinion on May 14.

“Under West Virginia Code § 23-4-15(b) (2005), amended by West Virginia Code § 23-415 (2010) (effective June 8, 2010), a claim for dependent benefits based on the death of an employee from occupational pneumoconiosis must be ‘filed by the dependent of the employee within one year from and after the employee’s death, and such time limitation is a condition of right and hence jurisdictional,’” the opinion says.

Margaret Lou Harding, widow of David Lee Harding, submitted an application for benefits to the appropriate claims administrator on June 5, 2009. Her husband, an employee of Little Man Coal, Inc., had died from coal worker’s occupational pneumoconiosis on January 20, 2008.

Harding had the application notarized on Jan. 5, 2009, which was within the year allowed under the statute. The opinion gave no reason as to why she waited until June 5, 2009 to file the application.

On Nov. 17, 2010, the Workers’ Compensation Office of Judges found that Harding had failed to file the application within the one-year statute of limitations and barred her claim. The Office of Judges, according to the opinion, found that Ms. Harding did not have a sufficient excuse to overcome the time limitation.

The state Workers’ Compensation Board of Review affirmed the order of the Office of Judges on June 8. 2011, and Ms. Harding appealed to the state’s high court.

“We agree with the determination of the Office of Judges that Ms. Harding failed to file her application within the effective time limit under West Virginia Code § 23-4-15(b),” the opinion states.

“None of the justifications Ms. Harding gives for her late filing are sufficient to overcome the time limitation and, because it is a condition of her right, her claim is, unfortunately, barred. The Board of Review was correct to affirm the Order of the Office of Judges.

“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.”

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