TIMOTHY M. HAGER, Claimant Below, Petitioner
PANTHER BRANCH COAL COMPANY, Employer Below, Respondent
Appeal No. 2051360) (Claim No. 2014022136)
Timothy M. Hager, by Wendle D. Cook, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Panther Branch Coal Company, by H. Toney
Stroud, its attorney, filed a timely response.
issue presented in the instant appeal is the amount of
permanent partial disability for a claim for occupational
pneumoconiosis. On July 11, 2014, the claims administrator
granted no award for occupational pneumoconiosis. The
Workers' Compensation Office of Judges affirmed the
claims administrator's decision on May 26, 2016. This
appeal arises from the Board of Review's Final Order
dated November 23, 2016, affirming 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
15, 2014, the Occupational Pneumoconiosis Board examined Mr.
Hager and he was found to be in good general clinical
condition and not in respiratory distress at rest. There were
no rales or wheezing found to be present. Mr. Hager reported
experiencing shortness of breath for five to seven years and
a chronic cough for five years. X-rays were interpreted as
showing insufficient pleural or parenchymal changes to
establish a diagnosis of occupational pneumoconiosis.
Arterial blood gas testing revealed a PCO2 of forty and a PO2
of 98%. The Board could not make a diagnosis of occupational
pneumoconiosis. The report was signed by Jack L. Kinder,
M.D., Bradley Henry, M.D., and Johnsey L. Leef Jr., M.D.
Physician's Report of Occupational Pneumoconiosis was
completed on July 11, 2015, by Mohammed Ranavaya, M.D. Dr.
Ranavaya diagnosed Mr. Hager with occupational pneumoconiosis
with a 25% impairment based upon arterial blood gas study
findings. Dr. Ranavaya found the following readings: PO2 of
sixty-four and a PaCO2 of forty-two.
15, 2015, a pulmonary function report was issued by Marshall
Family Medicine. The report indicated the absence of any
significant degree of obstructive pulmonary impairment. Blood
gas studies conducted at Marshall Family Medicine on July 15,
2015, showed a PaO2 of sixty-four and a PaCO2 of forty-two.
April 6, 2016, the Occupational Hearing Board conducted a
hearing. Mahendra M. Patel, M.D., a member of the Board,
testified that the difference between the blood gas studies
performed by Dr. Ranavaya and the blood gas studies performed
at the Occupational Lung Center were probably due to testing
differences. Dr. Patel stated that Dr. Ranavaya likely
performed the blood gas study with Mr. Hager in the supine
position (laying down), and the two studies performed at the
Occupational Lung Center, one for the Occupational
Pneumoconiosis Board, and the one at the request of the
attorney for the employer, were likely performed with Mr.
Hager in the upright position. John A. Willis, M.D., a member
of the Board, reviewed the chest x-rays and testified that
the films are insufficient to make a diagnosis of
occupational pneumoconiosis. Dr. Kinder testified that the
Board remained of the opinion that Mr. Hager has no permanent
partial disability impairment related to occupational
pneumoconiosis. Dr. Kinder did acknowledge that the studies
performed by Dr. Ranavaya are very similar and both represent
20% impairment. However, Dr. Kinder noted that the blood gas
studies from the Occupational Lung Center are within normal
limits and represent no impairment. Dr. Kinder further noted
that occupational pneumoconiosis is a permanent condition
that does not improve. The Board conclude that the best
studies of record indicate no permanent impairment.
Office of Judges affirmed the claims administrator's
decision to grant no award for occupational pneumoconiosis in
a final decision dated May 26, 2016. The Office of Judges
adopted the findings of the Occupational Pneumoconiosis Board
and found that the Board did not err in finding that Mr.
Hager had no impairment due to occupational pneumoconiosis.
The Office of Judges stated that occupational pneumoconiosis
is a permanent and progressive disease, and accepted Dr.
Patel's suggestion that variation in the arterial blood
gas studies most likely occurred because Dr. Ranavaya did his
studies with Mr. Hager lying down and the Occupational Lung
Center's studies were conducted with Mr. Hager in an
upright position. The Office of Judges concluded that Mr.
Hager is not entitled to a permanent partial disability award
for occupational pneumoconiosis. The Board of Review adopted
the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on November 23, 2016.
agree with the reasoning and conclusions of the Office of
Judges as affirmed by the Board of Review.
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
CONCURRED: Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Menis E. ...