Argus Energy, LLC v. Clifford Marenko, 887 S.E.2d 223

Clifford Marenko filed a second occupational pneumoconiosis (OP) claim received July 7, 2017, listing last exposure as December 31, 2013 and attaching a Physician’s Report dated January 31, 2017 with handwritten answers indicating OP and work impairment; the signature on the report was illegible.
Argus’s claims representative denied the claim as untimely under W. Va. Code § 23-4-15(b) (three-year limits). Marenko protested and the Office of Judges (OOJ) reversed, concluding he had not been diagnosed with impairment (because a prior impairment diagnosis had been reversed) and thus was not time-barred.
The Occupational Pneumoconiosis Board later recommended a 10% impairment. The Board of Review (BOR) affirmed the OOJ’s timeliness ruling, reasoning that the Physician’s Report indicated impairment under Pennington.
Argus appealed to the West Virginia Supreme Court. In its brief Argus argued the Physician’s Report did not show a diagnosed impairment; at oral argument Argus shifted to contend the report was not proved to be signed by a physician (raising a jurisdictional challenge).
The Supreme Court held §23-4-15(b) is jurisdictional, allowed consideration of the jurisdictional argument raised at oral argument, but found the BOR’s factual finding that the Physician’s Report (signed by a medical provider) indicated impairment was not clearly erroneous and affirmed the BOR.

Issue	Plaintiff's Argument (Marenko)	Defendant's Argument (Argus)	Held
Timeliness under W. Va. Code § 23-4-15(b): whether the claim was filed within three years of a physician informing the claimant of an impairment	The Physician’s Report dated Jan. 31, 2017 shows a physician diagnosed OP-related impairment, so the claim was timely under the "diagnosed impairment" time limit	Initially: the Report did not diagnose impairment; at oral argument: the signer was not proven to be a physician, so there was no physician-made diagnosis within three years	The BOR’s finding that the Physician’s Report (a physician form signed by a medical provider) indicated impairment was not clearly erroneous; claim is timely; BOR affirmed
Raising new signature/physician-authentication argument at oral argument	Waiver: issues must be raised in briefs and below; otherwise waived	Subject-matter jurisdiction can be raised at any time, including at oral argument	Court allowed consideration because §23-4-15(b) is jurisdictional; nevertheless Argus’s factual challenge failed on the merits

Moran v. Rosciti Constr. Co., LLC, 240 W. Va. 692, 815 S.E.2d 503 (W. Va. 2018) (standard of review for Board of Review factual findings and legal conclusions)
Pennington v. W. Va. Office of the Ins. Comm’r, 241 W. Va. 180, 820 S.E.2d 626 (W. Va. 2018) (explains § 23-4-15(b)’s two three-year time limits and Physician’s Report requirement)
Musacchio v. United States, 577 U.S. 237 (U.S. 2016) (statutes of limitations are ordinarily nonjurisdictional unless Congress clearly states otherwise)
In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (W. Va. 1996) (definition of "clearly erroneous" standard)
Brown v. Gobble, 196 W. Va. 559, 474 S.E.2d 489 (W. Va. 1996) (illustration of the rigorous clearly erroneous standard)