Appeal No. 2052135, Claim No. 2016025087
James Greer by, Reginald Henry his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Brooks Run South Mining, LLC, by Timothy E.
Huffman, its attorney, filed a timely response.
issue on appeal is the compensability of Mr. Greer's
claim for occupational pneumoconiosis benefits. On May 16,
2016, the claims administrator rejected the claim. The Office
of Judges affirmed the claims administrator in its August 10,
2017, Order. The Order was affirmed by the Board of Review on
January 5, 2018. 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
Greer, a coal miner, lost consciousness while working on
April 28, 2014. He was transported via ambulance to Raleigh
General Hospital where he was treated by Mustafa Rahim, M.D.
Dr. Rahim noted Mr. Greer complained of cough, wheezing, and
congestion, as well as a history of chronic obstructive
pulmonary disease. Dr. Rahim diagnosed hypoxemic type acute
respiratory failure and severe chronic obstructive pulmonary
disease exacerbation. An April 28, 2014, CT scan of the chest
revealed atelectasis, in the right middle lobe and both lower
lobes, possibly in combination with bibasilar pulmonary
Greer was discharged from the hospital with diagnoses of
severe chronic obstructive pulmonary disease exacerbation and
acute respiratory failure, hypoxemic type on May 1, 2014. Dr.
Rahim noted Mr. Greer was on a high dose of steroids. He
prescribed medication for Mr. Greer and advised him against
smoking. Mr. Greer had undergone spirometry which showed a
moderate decrease in both FEV1 and FVC, which was consistent
with obstruction. The FEV1 improved after bronchodilator
treatment. Dr. Rahim recommended Mr. Greer get tested for
black lung. Spirometry testing performed on May 19, 2014,
revealed mild restriction with moderate obstructive pulmonary
disease exacerbation, improved. On June 23, 2014, Mr. Greer
was treated at Raleigh General Hospital for cough,
congestion, wheezing, and tightness in his chest. He was
diagnosed with severe chronic obstructive pulmonary disease
exacerbation, pulmonary fibrosis, and suspected
August 18, 2014, Mr. Greer was seen by Anna Allen, M.D., for
a breathing problem. He provided a history of severe
difficulty with breathing after being in the mines for
several hours in April. He was given oxygen and transported
to the hospital. Then, on June 24, 2014, he developed severe
wheezing and difficulty breathing after cleaning the office.
He had been diagnosed with mild black lung. He is only able
to walk fifty yards before he has to stop and rest. Breathing
medications help. Dr. Allen diagnosed pneumoconiosis and
mixed restrictive and obstructive lung disease.
Greer was seen by Maria Bustani, M.D., on November 12, 2014.
She opined that he had restrictive lung disease with a mild
decrease in diffusion capacity. In her opinion, Mr. Greer had
been exposed to some type of toxic substance at his work. Dr.
Bustani diagnosed shortness of breath on exertion. She noted
that she had no documentation of severe obstructive lung
disease. But, it was possible that Mr. Greer may have been
more symptomatic during the exacerbation with the upper
respiratory tract infection. She recommended repeating the
pulmonary function testing in six months to follow up on the
possibility of early restrictive lung disease. In her
opinion, Mr. Greer seemed to have been exposed to a toxic
substance at his work at some point in time. She also opined
that the biggest issue was Mr. Greer's weight, and she
had encouraged him to lose weight.
Occupational Pneumoconiosis Board testified on July 1, 2015,
during a hearing before the Office of Judges. The spirometry
testing from May 1, 2014, did not contain the requisite
number of traces to be valid. The May 19, 2014,
bronchodilator spirometry testing was not valid and
reproducible because of a tracing issue. The Occupational
Pneumoconiosis Board was unable to make a diagnosis of
occupational pneumoconiosis. Mr. Greer had the requisite
number of years of exposure but it was a minimal amount of
exposure. Mr. Greer was using bronchodilator medication which
suggested bronchospastic disease. Mr. Greer had a ten pack
year history of smoking.
March 11, 2016, Mr. Greer completed an employee's and
physician's report of occupational injury or disease in
which he alleged he injured his lungs on April 28, 2014, when
he was exposed to coal dust while he was rock dusting. The
physician portion of the report was completed by Dr. Allen
who diagnosed pneumoconiosis and pulmonary fibrosis.
claims administrator rejected the claim on May 16, 2016,
because Mr. Greer had another claim regarding occupational
pneumoconiosis in litigation and because there was no
connection between the alleged condition and Mr. Greer's
work with Brooks Run South Mining, LLC. Mr. Greer testified
via deposition on August 26, 2016, that he was exposed to
dust while hauling it. He was also exposed to pulmonary
irritants when he cleared equipment. He was also exposed to
mine dust when he was involved in search and recovery
activities after the Upper Big Branch Mine disaster. Mr.
Greer's breathing problems included the inability to
catch his breath. On October 3, 2016, Dr. Allen wrote a
letter stating she evaluated Mr. Greer on August 18, 2014. In
her opinion, the pulmonary disease was more of a reactive
airway/obstructive etiology as opposed to a
Office of Judges affirmed the claim administrator's
rejection of the claim on August 10, 2017. It noted that Mr.
Greer submitted an occupational disease claim alleging he has
pneumoconiosis and reactive airway/obstructive disease.
However, Dr. Rahim did not explicitly state any opinion as to
the cause of Mr. Greer's condition. Dr. Allen diagnosed
reactive airway/obstructive disease but indicated the
diagnosis was muddled due to Mr. Greer's history of
smoking. Additionally, the Occupational Pneumoconiosis Board
found no evidence of occupational pneumoconiosis. The Office
of Judges determined that it was possible that Mr. Greer had
"some yet unidentified mixed restrictive and obstructive
lung disease". However, he failed to show the disease
was attributable to his work. The Board of Review adopted the
findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on January 5, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Mr.
Greer may have a pulmonary disease. However, he failed to
show that the disease was due to his work as a coal miner.
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 ...