Virgil Markovich, a former coal miner, has won a significant victory in his pursuit of workers’ compensation benefits for occupational pneumoconiosis (OP), commonly known as black lung. The Intermediate Court of Appeals of West Virginia reversed a decision by the Workers’ Compensation Board of Review that had denied his claim, finding that the Board erred in its interpretation of the statute of limitations.
The case revolves around when Mr. Markovich was first made aware of a diagnosed impairment due to OP. The Board had determined that a comment made by a physician, Dr. Blatt, while Mr. Markovich was being treated for pneumonia before July 2015, suggesting he “probably” had “the beginnings of black lung,” constituted a diagnosis of impairment, thus starting the clock on the three-year statute of limitations for filing a claim.
Background of the Claim
Mr. Markovich filed his application for OP benefits on July 23, 2024, alleging exposure to harmful dust during his employment with ACNR Resources, Inc. from October 2009 to July 2015, as well as exposure from previous employers dating back to 1964. The claim administrator denied the application, arguing that Mr. Markovich did not file within three years of his last exposure or within three years of being diagnosed with an impairment related to OP.
Medical evidence presented included reports from multiple physicians. Dr. Shawn Posin diagnosed Mr. Markovich with a 20% permanent pulmonary impairment due to occupational exposure, based on an examination and testing performed on April 23, 2024. A chest x-ray interpreted by Dr. Robert J. Tallaksen revealed parenchymal abnormalities consistent with pneumoconiosis.
Mr. Markovich testified that Dr. Blatt had mentioned the “beginnings of black lung” during a pneumonia treatment prior to July 2015, and that Dr. Richard Ryncarz noted asthma with an elevated diaphragm and indicated that there was impairment. However, no written report from Dr. Ryncarz was submitted as evidence.
The Court’s Reasoning
The Intermediate Court of Appeals disagreed with the Board’s assessment. The court emphasized that under West Virginia Code § 23-4-15(b), a claim for OP benefits must be filed within three years of the last exposure to hazards or within three years of a diagnosed impairment being made known to the employee by a physician.
The court found that Dr. Blatt’s statement was mere “conjecture” and lacked the “indicia of reliability” necessary to be considered a formal diagnosis of impairment. The court also pointed out the absence of any pre-2024 medical reports diagnosing OP. Citing a previous case, *Pennington v. West Virginia Office of the Insurance Commissioner*, the court noted that even radiology reports indicating “simple pneumoconiosis” were insufficient to establish a “diagnosed impairment.”
The Ruling
The court concluded that the Board was “clearly wrong” in determining that Mr. Markovich’s claim was untimely. The order of the Workers’ Compensation Board of Review was reversed, and the case was remanded. The Board is now directed to review Mr. Markovich’s application on its merits, specifically addressing the non-medical issue of whether he meets the exposure requirements for filing an OP claim and whether he meets the presumption set forth in West Virginia Code § 23-4-8c(b). This presumption relates to the establishment of a causal link between the claimant’s exposure and the disease.
This decision offers a new opportunity for Mr. Markovich to receive the benefits he seeks, and it clarifies the standard for what constitutes a “diagnosed impairment” in the context of OP claims in West Virginia.