Appeal No. 2051260, Claim No. 2015008099
JR Acquisition, LLC, by Bradley A. Crouser, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Leonard Dotson, by Anne L.
Wandling, his attorney, filed a timely response.
issue on appeal is whether Mr. Dotson's claim is
compensable. On October 9, 2014, the claims administrator
denied compensability of the claim. The Office of Judges
reversed the claims administrator in its April 22, 2016,
Order and held the claim compensable for reactive airways
dysfunction syndrome (RADS). The Order was affirmed by the
Board of Review on July 15, 2016. The Court has carefully
reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for
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
Dotson, a coal miner, became short of breath while working on
September 9, 2014. He was able to finish his shift. Later
that night, two miners were taken out of the mine after
becoming dizzy and short of breath. They were treated at the
hospital and released. The mine was temporarily shut down for
inspection on September 10, 2014. Mr. Dotson attempted to
return to work on September 11, 2014, but had trouble
breathing. He was removed from the mine and taken to the
hospital where he was treated for complaints of shortness of
breath. He was diagnosed with pneumonia, prescribed
medication, and advised to follow-up with a pulmonologist.
Mr. Dotson alleged in his Employee's and Physician's
Report of Occupational Injury that his lungs were injured on
September 9, 2014.
September 19, 2014, Mr. Dotson was treated by Obaeda
Harfoush, M.D., for shortness of breath. He was diagnosed
with an abnormal chest x-ray, pneumoconiosis, pneumonia,
shortness of breath, and RADS. Dr. Harfoush believed the RADS
was related to exposure to an unknown gas in the mine. He
recommended a pulmonary function test. On October 9, 2014,
the claims administrator rejected compensability of the claim
as the RADS did not develop in the course of and resulting
from his work.
Dotson testified via deposition on January 12, 2015. He
stated he was working on September 9, 2014, when he started
smothering. He continued to work and when he went home the
smothering feeling remained. He did not work the next day
because the mine was closed due to two miners becoming ill
the previous night. He returned to work on September 11,
2014, but had problems breathing and tightness in his chest
so he was taken by ambulance to the hospital. He was
diagnosed with pneumonia. However, a few days later Dr.
Harfoush told him he had breathed some kind of chemical and
not to return to work. When Mr. Dotson returned to work on
December 2, 2014, he was unable to continue due to feeling
like he was smothering.
February 10, 2015, Lamlia Ibrahim, M.D., examined Mr. Dotson
and noted he was breathing better since he stopped working.
Spirometry testing revealed a very severe obstructive
ventilator defect. Dr. Ibrahim opined the reduction in forced
vital capacity (FVC) may have been secondary to an
obstruction or it may have indicated an associated
Mulloy, D.O., evaluated Mr. Dotson on February 17, 2015. In a
letter to Dr. Ibrahim, she explained that RADS is the
development of respiratory symptoms in minutes or hours after
an exposure to a very high level of a respiratory irritant.
The initial criteria include the onset of asthma symptoms
within twenty-four hours of a single exposure, absence of
preexisting lung disease, objective evidence of asthma, and
continuation of asthma type symptoms for at least three
months. This diagnosis is largely circumstantial, relying on
the history of exposure, absence of documented preceding
airway disease, and objective documentation of asthma. In Dr.
Mulloy's opinion, Mr. Dotson met the criteria for RADS.
She opined there was no way of knowing specifically to what
respiratory irritant he had been exposed. However, she had no
evidence that Mr. Dotson developed RADS from an exposure
outside of the mine. The fact that two other miners became
ill lends more credence to a workplace exposure.
March 26, 2015, J. Randolph Forehand, M.D., evaluated Mr.
Dotson for his federal black lung claim. He found Mr. Dotson
had a history of wheezing attacks in 2014. He obtained a
chest x-ray, vent study, arterial blood gas, and EKG. All
were normal. Dr. Forehand found no evidence of an active lung
disease. He found no respiratory impairment.
G. Basheda, D.O., performed a medical records review on June
24, 2015. He disagreed with the diagnosis of RADS. He stated
that RADS was a non-immunologic pulmonary disorder
characterized by bronchial hyper-responsiveness/airway
obstruction secondary to a single, acute inhalational injury
of a high concentration of an irritant/toxic gas, aerosol, or
smoke and the onset of symptoms occurs within minutes to
hours of exposure. Dr. Basheda stated he found no history of
an acute exposure to a high concentration of a known
irritant. The air quality tests for oxygen, methane, and
carbon dioxide were negative. None of the well-known
irritants and/or toxins that cause RADS were documented.
Additionally, the onset of Mr. Dotson's symptoms was two
days before the reported exposure, which was documented in
the medical records as being on September 11, 2014. Dr.
Basheda also opined that the diagnosis of RADS requires the
absence of previous respiratory symptoms. Mr. Dotson had a
history of previous respiratory symptoms. In Dr.
Basheda's opinion, Mr. Dotson's proper diagnosis was
asthma which was trigged by the infection due to his
pneumonia. When Mr. Dotson returned to the mines in December
of 2014, the asthma symptoms were aggravated. Dr. Basheda did
not have the CT scan films to review. However, in his opinion
the pulmonary function testing performed on September 30,
2014, revealed evidence of asthma. Dr. Basheda found no
evidence of RADS.
Mulloy performed a records review on November 14, 2015, which
included a review of Dr. Basheda's report. Dr. Mulloy
noted that the MSHA inspectors completed tests for air
quality, including methane, carbon monoxide, and oxygen.
These levels were normal at the time of the inspection on
September 10, 2014. However, RADS is caused by gases that are
irritants. None of the gases that were tested for by MSHA are
irritants. Dr. Mulloy noted the inspectors advised they did
not test for any other types of gases, vapors, fumes, smoke,
or dust. Additionally, Mr. Dotson's symptoms developed
less than twenty-four hours after the exposure on September
9, 2014. The diagnosis of RADS requires the absence of
pre-existing asthma symptomatology or a history of asthma in
remission not just previous respiratory symptoms. Mr. Dotson
had never been diagnosed with asthma nor had persistent
asthma symptomatology prior to September 9, 2014. In her
opinion, it was more likely than not that Mr. Dotson's
diagnosis of RADS was related to an exposure on September 9,
Basheda reviewed additional medical records and prepared an
additional report on November 30, 2015. He did not agree with
Dr. Mulloy. In his opinion, one could not assume that an
undocumented exposure to an unknown chemical caused RADS.
There was evidence of a feeder bell smoking, so it was
possible that the smoke triggered or exacerbated Mr.
Dotson's underlying asthma. Dr. Mulloy mentioned that two
other miners had to be transported to the hospital the night
Mr. Dotson became ill. However, he was unable to confirm
acute respiratory disease of those miners as he had no
documented evidence of respiratory disease available to
review. Dr. Basheda opined that it was more likely that Mr.
Dotson had an environmental exposure that resulted in an
exacerbation of his underlying asthma. He could have also had
an underlying pneumonia. Mr. Dotson also had an underlying
Office of Judges reversed the claims administrator's
October 9, 2014, rejection of the claim on April 22, 2016,
and held the claim compensable for RADS. It determined that
Mr. Dotson had established by a preponderance of the evidence
that he sustained a pulmonary injury in the course of and as
a result of his employment. The Office of Judges relied on
the testimony of Mr. Dotson and the medical opinions of Drs.
Mulloy and Ibrahim. Dr. Mulloy opined that Mr. Dotson met the
criteria for RADS and there was no evidence that he developed
RADS from an exposure outside of the mine. Her opinion was
supported by that of Dr. Ibrahim and Dr. Harfoush. The OOJ
determined Dr. Basheda's opinion that the claimant had a
longstanding preexisting asthma condition had insufficient
evidentiary support. The Office of Judges also determined
that Mr. Dotson's inability to identify the specific
chemical agent related to his exposure and causing his
pulmonary response was not fatal to his claim. MSHA only
tested air quality in relation to methane, carbon monoxide,
and oxygen levels. No testing was performed for irritants
that could have caused RADS. However, Dr. Mulloy noted many
known respiratory irritants when she reviewed the 2010