Appeal No. 2051740) (Claim No. 2016025210)
Daniel Lee Tenney, by Robert L. Stultz, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Weatherford International, Inc., by T.
Jonathon Cook, its attorney, filed a timely response.
issue on appeal is the compensability of the claim. On April
8, 2016, the claims administrator denied Mr. Tenney's
application for benefits. The Office of Judges affirmed the
denial of the claim in its December 14, 2016, Order. The
Order was affirmed by the Board of Review on May 19, 2017.
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
March 8, 2016, Mr. Tenney, a service manager with Weatherford
International Inc., completed an Employee's and
Physician's Report of Occupational Injury or Disease
alleging he developed occupational asthma over time due to
exposure to dust, explosives, smoke, and oil and gas vapors
during the course of his employment. His last date of
exposure was February 28, 2014. The physician's portion
of the claim was completed by Salam Rajjoub, M.D., who had
been treating Mr. Tenney since June 25, 2008. He diagnosed
Mr. Tenney with obstructive sleep apnea and indicated this
was a direct result of an occupational disease. A January 25,
2016, letter written by Dr. Rajjoub indicated that Mr.
Tenney's diagnoses included asthma with exacerbation,
shortness of breath, cough, wheezing, obstructive sleep
apnea, obesity, and insomnia. Dr. Rajjoub opined the asthma
was related to Mr. Tenney's work environment.
the rejection of the claim by the claims administrator, Mr.
Tenney filed a protest. He testified by deposition on June 2,
2016, that he is six feet tall, weighs 327 pounds, and is a
non-smoker. His last position at Weatherford International,
Inc., required him to inspect and service quality, check
other employees on location, give field tests, and assist
with safety and inventory, among other things. He traveled to
eight districts, two of which were in West Virginia. He was
exposed to oil and gas vapors, dust, and secondhand smoke. He
experienced shortness of breath when he walked any distance,
when it was too hot outside, when it was too cold outside,
and when he climbed stairs. He first noticed his breathing
problems in the 1990's. However, the first time he
noticed a problem at work was in February of 2005. He was
walking to a location he was unable to access by vehicle when
he felt like he could not breathe. He had to stop walking and
rest for a few minutes. After that incident, his family
physician referred him to Dr. Rajjoub, who he sees about
every four months. Mr. Tenney said he takes medication for
his asthma, and uses an inhaler. He had one asthma attack
while he was working and that was in 2006. The attack
happened while he was walking up a slight incline, back to
Martin, M.D., performed an independent medical evaluation on
Mr. Tenney and prepared a written report on August 17, 2016.
Mr. Tenney told Dr. Martin that he had been having episodes
of shortness of breath and feeling like he was going to die
since he had the first episode in 2010. The episodes include
chest tightness, wheezing, and dry cough. None of these have
occurred without exertion and end when the activity stops.
The episodes occur outside of the workplace. Mr. Tenney
advised Dr. Martin that his position at Weatherford
International was eliminated, so he chose to take early
retirement. Upon examination, Dr. Martin noted auscultation
of the chest revealed normal air entry throughout with no
crackles or wheezing. In Dr. Martin's opinion, the
clinical picture was atypical for asthma as Mr. Tenney was
always exerting himself when the symptoms occurred but they
did not last beyond the exertion. The pulmonary function
testing did not support a diagnosis of asthma. Mr. Tenney had
restrictive abnormalities, not the findings of asthma that
were obstructive in nature. In Dr. Martin's opinion, the
abnormalities were classically associated with Mr.
Tenney's obesity. Additionally, the medical records
showed his shortness of breath was not subjectively relieved
by bronchodilators. Dr. Martin could not diagnose any lung
disease process. Mr. Tenney noted his symptoms had been
worsening even though he left the workplace in 2014.
Order entered December 14, 2016, the Office of Judges
affirmed the claims administrator's rejection of the
claim. It found the report of Dr. Martin to be the most
persuasive evidence of record. Dr. Martin explained his
findings fully and explained in detail why he did not believe
Mr. Tenney suffered from asthma. It relied on Dr.
Martin's opinion and found Mr. Tenney failed to prove he
suffered from occupational asthma. Dr. Martin opined that the
fact that the episodes Mr. Tenney described always occurred
when he was exerting himself, but resolved when the exertion
was stopped, was not a typical picture of asthma. The
pulmonary function testing did not support a diagnosis of
asthma as it showed restrictive abnormalities, not
obstructive abnormalities, which is seen in asthma. In Dr.
Martin's opinion, the abnormalities were classically
associated with Mr. Tenney's obesity. Additionally, the
medical records showed his shortness of breath was not
subjectively relieved by bronchodilators. Dr. Martin was
unable to diagnose any pulmonary issue related to Mr.
19, 2017, the Board of Review affirmed the Office of
Judges' decision and adopted the findings of fact and
conclusions of law of the Office of Judges. After review, we
agree with the Board of Review. Mr. Tenney failed to prove
that he had occupational asthma. He stopped working in 2014,
but his symptoms worsened after he retired. His symptoms only
occur with exertion and stop when the exertion stops. And the
restrictive abnormalities that were present were not the
findings of asthma. Additionally, Dr. Rajjoub, Mr.
Tenney's treating physician, listed the diagnosis as
obstructive sleep apnea on the claim application.
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 IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...