Appeal No. 2052199 (Claim No. 2016008697)
Thomas Carpenter, by William C. Gallagher, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. GMS Mine Repair and
Maintenance, Inc., by Sean Harter, its attorney, filed a
issue on appeal is permanent partial disability. The claims
administrator granted a 10% permanent partial disability
award on March 21, 2016. The Office of Judges reversed the
decision in its August 23, 2017, Order and granted no award.
The Order was affirmed by the Board of Review on January 11,
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
Carpenter, a coal miner, alleges that he developed
occupational pneumoconiosis as a result of his employment. A
February 4, 2015, treatment note by Melvin Saludes, M.D.,
indicates he was diagnosed with chronic obstructive pulmonary
disease. Pulmonary studies showed an FEV1 that was 63% of
predicted with an FEV1/FVC ratio of 51% of predicted. Dr.
Saludes found that Mr. Carpenter had significant airflow
obstruction with some responsiveness to bronchodilators. This
was consistent with chronic obstructive pulmonary disease,
likely caused by his cigarette smoking history of
seventy-eight pack years. Coal dust was noted to be a
possible contributor. Mr. Carpenter's pulmonary
impairment was found to be 40%. In a March 13, 2015,
addendum, Dr. Saludes reviewed February 4, 2015, chest x-rays
and found no parenchymal or pleural abnormalities consistent
with occupational pneumoconiosis.
Carpenter completed a report of occupational pneumoconiosis
on July 27, 2015. He indicated he was last exposed to the
hazards of occupational pneumoconiosis on December 11, 2013,
when he was laid off. Mr. Carpenter stated that he was
diagnosed with occupational pneumoconiosis by Dr. Saludes on
February 4, 2015. The Occupational Pneumoconiosis Board
evaluated Mr. Carpenter on January 19, 2016. It found that he
was exposed to the hazards of occupational pneumoconiosis for
fourteen years as an underground coal miner, miner operator,
roof bolter, shuttle car operator, and foreman. He was
diagnosed with chronic obstructive pulmonary disease in 2015
and uses bronchodilators. The Occupational Pneumoconiosis
Board found that chest x-rays showed insufficient pleural or
parenchymal changes to establish a diagnosis of occupational
pneumoconiosis. However, the Board concluded that there was
sufficient evidence to justify a diagnosis of occupational
pneumoconiosis with 10% impairment attributable to the
disease. Based on the Occupational Pneumoconiosis Board's
findings, the claims administrator granted a 10% permanent
partial disability award for occupational pneumoconiosis on
March 21, 2016.
Carpenter completed a set of interrogatories for the employer
in which he indicated that he smoked one pack of cigarettes a
day for thirty-eight or thirty-nine years. He stopped smoking
in 2009. Mr. Carpenter was treated by Attila Lenkey, M.D., on
June 20, 2016. He had a FEV1 of 58% and a FEV1/FVC ratio of
50%. His 40% impairment had not changed. Dr. Lenkey opined
that Mr. Carpenter's lung disease was caused by a mixture
of longstanding dust exposure and cigarette smoking. In an
August 19, 2016, addendum, Dr. Lenkey stated that the June
20, 2016, chest x-rays, interpreted by Jeffrey Unger, M.D.,
showed interstitial opacities consistent with pneumoconiosis.
He opined that the 40% impairment was directly caused by Mr.
Carpenter's long history of dust exposure.
Occupational Pneumoconiosis Board testified in a hearing
before the Office of Judges on July 6, 2016. Jack Kinder, MD,
stated that Mr Carpenter's diffusion study indicates
impairment greater than 10%, but the clinical findings
support adjustment of impairment to 10% Dr Kinder opined that
the Board may have missed the opportunity to review some
medical records from Dr Saludes and that he would feel more
comfortable if it could do so He found no indication for
impairment above 10% Bradley Henry, MD, also of the
Occupational Pneumoconiosis Board, concurred with Dr. Kinder.
Johnsey Leef, M.D., stated that he was unable to make a
diagnosis of occupational pneumoconiosis.
15, 2016, the claims administrator found that the claim was
non-presumptive. On August 12, 2017, Danielle Seaman, M.D.,
interpreted the June 20, 2016, chest x-ray. She found no
opacities to suggest occupational pneumoconiosis, and she
opined that the chest x-ray was normal with no findings
consistent with occupational pneumoconiosis.
Occupational Pneumoconiosis Board testified in a second
hearing before the Office of Judges on July 19, 2017. It was
noted that the claim was now non-presumptive. John Willis,
M.D., testified on behalf of the Board that he found
insufficient evidence to establish a diagnosis of
occupational pneumoconiosis, though it was a close case. He
agreed with Dr. Seaman's negative x-ray interpretation.
He also agreed with Dr. Leaf's interpretation of the
Board's January 19, 2016, x-ray. Dr. Kinder testified
that since the case is now non-presumptive, he believed that
there was insufficient evidence to diagnose occupational
pneumoconiosis. He stated that he found that Mr. Carpenter
has no occupational pneumoconiosis or any permanent
impairment as a result. Mr. Carpenter does have some
pulmonary impairment; however, he has a non-occupationally
related lung disease. At the initial evaluation before the
Board, the majority of his impairment was found to be the
result of cigarette smoking and non-occupational
bronchospastic disease. Dr. Kinder noted that Mr. Carpenter
was diagnosed with chronic obstructive pulmonary disease in
2015. Dr. Kinder stated that Mr. Carpenter's smoking
history is sufficient to have caused permanent pulmonary
impairment. Mallinath Kayi, M.D., concurred that Mr.
Carpenter did not have occupational pneumoconiosis or any
impairment attributable to the disease.
Office of Judges reversed the claims administrator's
grant of a 10% permanent partial disability award and granted
no award in its August 23, 2017, Order. It determined that
the Occupational Pneumoconiosis Board testified in a hearing
that there was insufficient evidence to establish a diagnosis
of occupational pneumoconiosis. Dr. Kinder stated that Mr.
Carpenter's smoking history is sufficient to have caused
permanent pulmonary impairment. Further, Drs. Saludes and
Seaman both interpreted the chest x-rays as being negative
for occupational pneumoconiosis. The Office of Judges
concluded that the findings of the Occupational
Pneumoconiosis Board were not clearly wrong and that Mr.
Carpenter has no evidence of occupational pneumoconiosis and
no impairment from the condition. The Board of Review adopted
the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on January 11, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. The
Occupational Pneumoconiosis Board's determination is
supported by the evidence of record. The Office of Judges and
Board of Review committed no error in relying on its opinion
and finding that Mr. Carpenter is entitled to no permanent
partial disability award for occupational pneumoconiosis.
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 ...