Appeal No. 2051924) (Claim No. 2016016063)
Kanetha Glover, by Reginald Henry, her attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Raleigh County Board of Education, by T. Jonathan
Cook, its attorney, filed a timely response.
issue on appeal is the compensability of Ms. Glover's
claim for workers' compensation benefits. On January 19,
2016, the claims administrator denied Ms. Glover's claim.
The Office of Judges affirmed the claims administrator in its
April 12, 2017, Order. The Order was affirmed by the Board of
Review on August 28, 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
Glover worked as a cook for Raleigh County Board of
Education. On December 21, 2015, she had an asthma attack
while walking through the cafeteria. Ms. Glover attributed
the asthma attack to fumes and dust from vinyl tile that was
being removed. The use of her inhaler helped, but due to
continued difficulty breathing, she sought treatment in the
emergency room at Raleigh General Hospital. A chest x-ray
revealed no active cardiopulmonary process or abnormalities.
Ms. Glover was diagnosed with bronchitis.
January 3, 2016, Ms. Glover experienced another asthma attack
when she was putting food in the kitchen. Ms. Glover
attributed the asthma attack to the fumes caused by the
removal of the vinyl tile. Ms. Glover was treated in the
emergency room at Raleigh General Hospital and diagnosed with
an acute exacerbation of asthma. She was prescribed Albuterol
January 5, 2016, Ms. Glover was seen by Kathy Gunter, D.O.
Ms. Glover provided a history of having experienced shortness
of breath, wheezing, and coughing on December 21, 2015, after
workers started pulling up tiles. She thought she may have
been exposed to asbestos. She recovered until January 3,
2016, when she developed the same symptoms again after
breathing fumes from the tile work. Dr. Gunter diagnosed
unspecified asthma with acute exacerbation and gave Ms.
Glover an injection. On January 7, 2016, Ms. Glover was seen
by Gary Poling, M.D., her family physician. Dr. Poling
diagnosed asthma and asthma exacerbation secondary to dust at
work. He prescribed Symbicort and Singulair.
January 15, 2016, an Indoor Environmental Assessment report
was completed based on samples collected on December 23,
2015. The testing detected three refrigerants, all of which
were well below the OSHA Permissible Exposure Limits. The
claims administrator rejected the claim on January 19, 2016,
as Ms. Glover's asthma was preexisting. This protest
Glover testified via deposition on July 20, 2016, that she
worked as a cook at Park Middle School for Raleigh County
Board of Education. She was diagnosed with asthma in 2010 by
Dr. Poling. In October of 2014, she filed a workers'
compensation claim alleging breathing problems as the result
of ceiling tiles being pulled off of the ceiling and
insulation, dirt, and dust dumped all over her body. She had
an asthma attack and was unable to breathe. The claim was
held compensable. On December 21, 2015, she was moving trash
from the kitchen to the cafeteria when she started having
difficulty breathing due to dust and fumes from tile being
removed in the cafeteria. She told her co-workers she was
having an asthma attack and asked one of them to get her
inhaler. The use of the inhaler helped, but the principal
advised her to go home, which she did. When she arrived home,
her husband told her she needed to go to the hospital because
of her difficulty breathing. She was given medication at the
hospital and advised to remain off of work until the tile in
the cafeteria was finished. She had a flare-up on January 3,
2016, when she went to the school to drop off products for
the concession stand for a game. Ms. Glover continued using
the nebulizer until February of 2016. She reported no
additional symptoms and no problems performing her job
letter dated August 10, 2016, Dr.
Hamon stated Ms. Glover's initial date of
injury was in October of 2014, when she reported being
exposed to insulation and asbestos. The second exposure
occurred on December 21, 2015, when Ms. Glover was exposed to
fumes. She was treated three times with the last date of
treatment of January 2, 2016. In Dr. Hamon's opinion, Ms.
Glover became symptomatic and had objective physical findings
on examination following the December of 2015 and January of
Office of Judges affirmed the claims administrator's
denial of the claim on April 12, 2017. It noted Ms.
Glover's preexisting diagnosis of asthma and previous
occupational injury in which she was covered in dust and
insulation after ceiling tile was pulled down in October of
2014. However, the circumstances of exposure in December of
2015 and January of 2016 differed from that of 2014 as Ms.
Glover was alone in the cafeteria and no active construction
was going on when she had the asthma attacks in 2015 and
2016. Additionally, the Indoor Environmental Assessment
conducted on December 23, 2015, was performed under similar
circumstances to those experienced by Ms. Glover on the two
days she had the asthma attacks as no active construction was
going on at the time of the study. The Office of Judges found
that Ms. Glover submitted "ambiguous evidence"
regarding causation. The treatment notes of Dr. Hamon did not
state the cause of the exacerbation of the asthma from a
medical standpoint, but only reiterated statements Ms. Glover
made to Dr. Hamon regarding causation. The Office of Judges
found that the evidence showed Ms. Glover "suffered from
an acute pulmonary event" on December 21, 2015.
Therefore, the Office of Judges found that Ms. Glover did not
prove by a preponderance of the evidence that she was injured
Board of Review adopted the findings of fact and conclusion
of law of the Office of Judges and affirmed its Order on
August 28, 2017. The Board of Review relied on Newsome v.
H. William Mattingly Corp., No. 13-0723 2014 WL 5068548
(W.Va. Oct. 7, 2014)(memorandum decision) and Bannister
v. State Workmen's Compensation Commissioner, 154
W.Va. 172, 174 S.E.2d 605 (1970) in finding that an
aggravation of preexisting asthma is not sufficient to
constitute an occupational disease. In keeping with
Newsome, it determined that while Ms. Glover's
asthma may have been aggravated by the construction in her
workplace, the asthma was not caused by her work as required
by West Virginia Code § 23-4-1(f) (2008).
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Ms.
Glover experienced exacerbations of her preexisting asthma on
December 21, 2015, and January 3, 2016, from which she fully
recovered. According to her own testimony, she no longer
takes medications due to the exacerbations, and she is able
to fully perform her work duties. Ms. Glover failed to prove
that either or both exacerbations constituted an occupational
injury or occupational disease. Therefore, her claim for
workers' compensation benefits was properly denied.
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 ...