Appeal No. 2050850) (Claim No. 2014023870)
Daniel Broyles Jr., by Reginald D. Henry, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Mountain Vending, Inc., by Lisa
Warner Hunter, its attorney, filed a timely response.
issue on appeal is whether the alleged injury in this claim
should be held compensable. This appeal originated from the
February 25, 2014, claims administrator's decision
rejecting the claim. In its October 2, 2015, Order, the
Workers' Compensation Office of Judges affirmed the
decision. The Board of Review's Final Order dated March
23, 2016, affirmed the Order of the Office of Judges. The
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration.
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
Broyles Jr., a route man, alleges he sustained an
occupational injury in the course of his employment when his
use of a work vehicle caused him to inhale exhaust fumes,
burning rubber fumes, and carbon monoxide. On January 24,
2014, Mr. Broyles presented to Raleigh General Hospital for
episodes of dizziness that began approximately two weeks
prior. A chest x-ray demonstrated mildly hyperinflated lungs.
Mr. Broyles was admitted and was diagnosed with sinus
bradycardia most likely attributable to his medications,
dizziness most likely attributable to nausea and
gastrointestinal upset, and hypertension. On January 25,
2014, Mr. Broyles underwent an echocardiogram which revealed
a significantly depressed ejection fraction of 30-35%.
February 4, 2014, Mr. Broyles returned to the emergency room
at Raleigh General Hospital with complaints of dizziness. A
CT of the brain revealed no evidence for acute intracranial
process. A chest x-ray revealed linear atelectasis of the
right lower lobe. Mr. Broyles filed two applications for
worker's compensation benefits alleging an injury during
the course of his occupation. Neither application indicated
his symptoms were a result of his occupation. On February 25,
2014, the claims administrator rejected the claim stating
there was no evidence to support any type of exposure while
Mr. Broyles was in the course and scope of his employment.
Broyles has a significant medical history. Starting in August
of 2006, Mr. Broyles began seeing Thair Barghouthi, M.D., for
chest pains and dizziness. On September 9, 2006, Mr. Broyles
underwent a heart catheterization and was diagnosed with
coronary atherosclerosis disease with mild LAD stenosis,
severe left ventricle dysfunction with an ejection fraction
of 40%, mild pulmonary hypertension, and hypertensive heart
disease. Beginning in December of 2008, Mr. Broyles also
began seeing Kimberly Ballad, D.O., for sleep apnea,
breathing problems, and hypertension. On February 20, 2014,
Mr. Broyles reported to Dr. Ballard that he had been
hospitalized for four days with dizziness, dyspnea, and chest
pain which he believed were attributable to a leaky exhaust
in his work vehicle. On May 20, 2014, Mr. Broyles was seen by
Charles Porterfield, D.O., for dyspnea. Dr. Porterfield
diagnosed dyspnea and carbon monoxide exposure based on Mr.
Broyles's claims of inhaling exhaust fumes.
November 24, 2014, Mr. Broyles's testified in a
deposition that the work van he was driving in the course of
his employment had an exhaust leak. Mr. Broyles reported that
he notified the company mechanic at least twice weekly that a
problem existed with the vehicle. When driving the vehicle,
Mr. Broyles would inhale fumes causing him to experience
dizziness, nausea, and vomiting. Mr. Broyles was able to
drive other vehicles for some periods of time, during which
he did not experience the symptoms. However, those vehicles
became unsafe to drive and his primary work vehicle was
returned to him. His symptoms resumed with use of his primary
work vehicle. Mr. Broyles also testified that during his
hospitalization he did not experience the symptoms but they
returned when he resumed working.
December 17, 2014, Marsha Bailey, M.D., performed a review of
Mr. Broyles's medical records. Dr. Bailey noted that Mr.
Broyles has a significant history of coronary artery disease,
type II diabetes, hypertension, obesity, sleep apnea, and
sinus bradycardia. He also has a significant history of heart
disease dating back to 2006. Dr. Bailey opined that Mr.
Broyles's symptoms were solely a result of these personal
risk factors. She noted that Mr. Broyles's heart ejection
fraction was at 30-35%, significantly worse than the normal
range of 50-55%. Persons with this low of ejection fraction
are easily fatigued and become short of breath. Dr. Bailey
also explained that Mr. Broyles's shortness of breath was
more than likely the result of his previous thirty-five year
smoking habit. Ultimately, Dr. Bailey determined there was no
evidence of carbon monoxide exposure at work; rather, Mr.
Broyles's heart and lung disease, along with other risk
factors, were solely responsible for his symptoms.
Bailey again reviewed Mr. Broyles's medical records on
January 22, 2015. Dr. Bailey reiterated her belief that Mr.
Broyles's symptoms were the result of his longstanding
overall state of poor health, which is solely related to his
personal risk factors and not to his occupation. Dr. Bailey
stated it was critical to understand that Mr. Broyles's
ability of his heart to pump blood, measured by ejection
fraction, is severely damaged. The current symptoms Mr.
Broyles claims to experience are nearly identical to those
experienced when he was first diagnosed with heart disease.
Dr. Bailey concluded Mr. Broyles's symptoms were not
related to his occupation.
April 6, 2015, Robert Leeber testified on behalf of Mr.
Broyles. Mr. Leeber indicated that he interacted with Mr.
Broyles on a professional level as he was a security guard at
a hospital on Mr. Broyles's work route. Mr. Leeber would
unlock the door so that Mr. Broyles could carry out his
duties and would often see him for twenty minutes at a time.
Mr. Leeber noted five occasions on which Mr. Broyles appeared
disoriented, dizzy, and nauseous: December 18, 2013; December
23, 2013; December 30, 2013; January 7, 2014; and January 14,
2014. Mr. Leeber testified that on two of those occasions he
smelled burning rubber and witnessed smoke inside the
Office of Judges affirmed the claims administrator's
decision rejecting the claim on October 2, 2015. The Office
of Judges provided a detailed overview of the evidence
submitted by Mr. Broyles and Mountain Vending, Inc. It noted
that Mr. Broyles claimed to only experience dizziness,
nausea, and vomiting while working and being exposed to
fumes. Medical records of Dr. Ballard and Dr. Porterfield
indicated Mr. Broyles exhibited these symptoms. The Office of
Judges also noted that Mr. Leeber's testimony was totally
unbiased and thus carries great weight. The Office of Judges
also noted that no physician had marked Mr. Broyles's
illness as being occupational on either of the applications
for benefits he filed. Further, Dr. Bailey detailed Mr.
Broyles's significant medical history which included
heart disease, a significant prior smoking habit, and
obesity, all of which provide a medical explanation for the
symptoms exhibited. Ultimately, the Office of Judges found
the preponderance of the evidence failed to demonstrate that
Mr. Broyles has an occupational injury from the alleged
exposure. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed
its Order on March 23, 2016.
agree with the decision of the Board of Review. None of the
treating physicians have clearly opined that Mr.
Broyles's illness is the result of his occupation.
Rather, they have merely repeated what Mr. Broyles tells them
in their records. In contrast, Mr. Broyles has a clear,
significant medical history which appears to be the source of
his myriad of symptoms.
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 ...