KENNETH D. BOWLES, Claimant Below, Petitioner
v.
THE NEW WV MINING, INC., Employer Below, Respondent
BOR
Appeal No. 2051662 (Claim No. 2011018963)
MEMORANDUM DECISION
Mr.
Bowles requests a reopening of his claim on a permanent
partial disability basis. On October 29, 2015, the claims
administrator denied his request. In a Decision dated
November 3, 2016, the Workers' Compensation Office of
Judges affirmed the claims administrator's denial of
reopening. This appeal arises from the Board of Review's
Final Order dated February 14, 2017, in which the Board
affirmed the November 3, 2016, 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. 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, we affirm the decision of the Board of
review.
Mr.
Bowles filed a petition to reopen his prior claim for
consideration of an adjustment to his permanent partial
disability award for occupational pneumoconiosis. As an
underground coal miner and electrician, he has a history of
exposure to the hazards of dust for over forty years. He was
last exposed to dust on November 9, 2010. Mr. Bowles was
granted a 25% permanent partial disability award for
occupational pneumoconiosis in Claim No. 900066319 on May 30,
1991. Mr. Bowles testified by telephonic deposition that he
had been a heavy smoker for over thirty years.
Mr.
Bowles was examined by the Occupational Pneumoconiosis Board
on June 9, 2011. He presented with moderate wheezing
throughout both lung fields. X-rays showed the presence of
bullous emphysema in the upper lobes of the lungs. When
compared to the Board's prior study of May 2, 1996, there
was no change. At the time of examination, Mr. Bowles's
carboxyhemoglobin level was 4.7%, which strongly suggested
that he was smoking prior to his examination. The Board
advised that Mr. Bowles had no more than 25% impairment for
his occupational pneumoconiosis, which was the amount awarded
to him in Claim No. 900066319.
Mr.
Bowles submitted a pulmonary function study from the Lung
Disease and Sleep Disorders Clinic dated March 20, 2012. The
study showed a decreased diffusion capacity, which was 60% of
the predicted value. Vishnu Patel, M.D., concluded that the
pulmonary function test was consistent with moderate
emphysema, pneumoconiosis, and chronic obstructive pulmonary
disorder. The study contained no tracings or
carboxyhemoglobin test.
A
pulmonary function test from the Lung Disease and Sleep
Disorders Clinic dated February 24, 2015, was submitted by
Mr. Bowles. The study documented an impression of chronic
obstructive pulmonary disorder, emphysema, pneumoconiosis,
and occupational asthma. This study also did not contain
tracings or a carboxyhemoglobin test.
The
Employer submitted repeat pulmonary function studies from the
Occupational Lung Center dated September 2, 2015.
Pre-bronchodilator studies revealed an FVC of 4.65, FEV1 of
2.29, and an FEV1/FVC of 49%. The diffusion study was found
to be invalid because the carboxyhemoglobin level measured
3.3%, which shows he was smoking on the date of the
evaluation.
By
Order dated October 29, 2015, the claims administrator denied
his petition to reopen the claim for consideration of
additional permanent partial disability benefits. The claims
administrator stated that the evidence did not indicate an
aggravation or progression of Mr. Bowles's occupational
pneumoconiosis. Mr. Bowles protested the claims
administrator's decision.
In a
Final Order dated November 3, 2016, the Office of Judges
found that Mr. Bowles has not established an aggravation or
progression of his injury or new facts not previously
considered that would entitle him to a greater award. The
Office of Judges found that the pulmonary function tests of
record were not valid for the purpose of establishing that
Mr. Bowles has increased breathing impairment. Mr. Bowles
submitted two pulmonary function tests dated March 20, 2012,
and February 24, 2015. Neither study contained tracings,
which West Virginia Code of State Rules § 85-20-52
(2006) requires to show the reliability of the ventilator
studies. Because the tracings were not included, the Office
of Judges deemed the reports to be unreliable.
The
Office of Judges also found the pulmonary function studies of
March 20, 2012, and February 24, 2015, to be unreliable
because the tests were submitted without an accompanying
carboxyhemoglobin test. West Virginia Code of State Rules
§ 85-20-52.9 (2006) states that a carbon monoxide
diffusion capacity of the lungs test without an accompanying
carboxyhemoglobin test, or a carboxyhemoglobin value of 3.1%
or higher, cannot be considered as a valid measure of
impairment. The Office of Judges found that the diffusion
study dated September 2, 2015, was unreliable because the
measured carboxyhemoglobin level was 3.3%, which is beyond
the threshold established by Rule 20.
The
Office of Judges affirmed the claims administrator's
Order dated October 29, 2015. The Office of Judges concluded
that Mr. Bowles failed to show an aggravation or progression
of his injury or new facts not previously considered that
would entitle him to a greater award for his occupational
pneumoconiosis. The Board of Review affirmed the reasoning
and conclusions of the Office of Judges in its decision dated
February 14, 2017. On appeal, Mr. Bowles, by Reginald Henry,
his attorney, asserts that pulmonary testing indicates
additional impairment above the award previously granted. The
New WV Mining, Inc., by T. Jonathan Cook, its attorney,
argues that the spirometry and diffusion studies could not be
relied upon to show a progression or aggravation of a
pulmonary condition. Because the record does not contain
reliable evidence of additional permanent partial disability
impairment, the Board of Review's Order should be
affirmed. Mr. Bowles has not established a prima facie cause
of a progression or aggravation of his former occupational
pneumoconiosis injury to warrant a reopening of the claim.
For the
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
affirmed.
Affirmed.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...