JOHN M. WHITE, Claimant Below, Petitioner
CATERPILLAR GLOBAL MINING, LLC, Employer Below, Respondent
Appeal No. 2052554) (Claim No. 2014031816)
John White, by John H. Shumate, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Caterpillar Global Mining, LLC, by Cameron Blair,
its attorney, filed a timely response.
issue on appeal is the percentage of permanent impairment
related to occupational pneumoconiosis. The claims
administrator granted Mr. White no additional award for
occupational pneumoconiosis on August 11, 2015. The
Workers' Compensation Office of Judges affirmed the
claims administrator's Order on February 6, 2018. This
appeal arises from the Board of Review's Final Order
dated June 11, 2018, in which the Board affirmed the Final
Order of the Office of Judges.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. This 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 Procedure.
White has 32 years of exposure to dust as a plant
worker/fabrication foreman and eleven years as a mine
construction worker. Most recently, Mr. White worked as a
shop foreman for Caterpillar Global Mining, LLC. He worked
for that particular facility, which had been operated by
various employers, until he filed for benefits on May 8,
2014. He had previously filed a workers' compensation
claim for occupational pneumoconiosis against Southern
Fabricators in Claim. No. 9900008979. In that claim, Mr.
White was granted a 10% permanent partial disability award on
February 22, 1999. The claims administrator rejected Mr.
White's claim for failing to meet the requirements of
compensability. Mr. White protested. On appeal, the Office of
Judges issued a Final Order dated February 24, 2015, which
reversed the rejection of the claim by the claims
administrator. The Office of Judges concluded that Mr. White
has sufficient exposure to the hazards of breathing abnormal
quantities of dust to give the claims administrator
jurisdiction to consider the claim.
Occupational Pneumoconiosis Board issued a report dated June
4, 2015, finding sufficient evidence to justify a diagnosis
of occupational pneumoconiosis with no more than the 10%
pulmonary functional impairment attributable to the disease
previously found in Claim No. 9900008979. The Board's
decision was based upon Mr. White's physical examination,
pulmonary function studies conducted for the Board and x-rays
of his chest. The Board found that Mr. White reported
experiencing shortness of breath for 25 years, and a mild
productive cough for 15 years. He noted wheezing for 20
years, and he was treated for pneumonia in 1990. Mr. White
was diagnosed with chronic obstructive pulmonary disease in
2010. He also has a history of a left pneumothorax which was
found in 1997. Chest x-rays did not show sufficient pleural
or parenchymal changes to establish a diagnosis of
upon the findings of the Occupational Pneumoconiosis Board,
the claims administrator issued an Order on August 11, 2015,
stating that Mr. White is entitled to an award of no more
than 10% permanent partial disability, the same as was
previously awarded under Claim No. 9900008979. Because he was
granted a 10% award under that claim, the claims
administrator stated that Mr. White would not be receiving
any additional permanent partial disability benefits. Mr.
White protested the claims administrator's decision.
support of his protest, Mr. White submitted a January 6,
2016, report from New River Health, noting that he underwent
spirometry, lung volume and diffusion studies during the
testing process. The highest FEV1 and FVC results from the
study were 57% and 66% of their predicted normal value. The
highest FEV1/FVC measurement was 68%. The interpretation
noted pre-testing results as severe obstructive, and
moderately restrictive breathing. The post-testing report
indicated moderately obstructive, and moderately restrictive
breathing with significant improvement. FEV lung volumes were
normal and consistent with pseudo restriction.
Occupational Pneumoconiosis Board ("OP Board")
conducted a hearing on June 15, 2016, where the OP Board
reviewed the medical evidence noting that the New River
Health pulmonary function studies of January 6, 2016, showed
10% impairment. Mr. White was found to have a history of
atrial fibrillation and a left pneumothorax. He also had a
20-year smoking history, which he ceased 20 years prior to
his examination. The post-bronchodilator study on June 4,
2015, revealed about 10% impairment. There was a 16%
improvement in his FVC and a 17% improvement in his FEV1,
which is significant for a diagnosis of bronchospastic
disease. There was no x-ray evidence of occupational
pneumoconiosis. The Occupational Pneumoconiosis Board
remained of the opinion that Mr. White has 10% impairment
attributable to occupational pneumoconiosis for which he had
been compensated previously.
14, 2016, the Office of Judges affirmed the claims
administrator's decision. On December 7, 2016, the Board
of Review remanded the claim with instructions to issue a new
time frame to allow the parties to develop and submit
additional evidence and to schedule a new OP Board hearing.
February 24, 2017, George L. Zaldivar, M.D., issued an
independent medical evaluation report that concluded that
there is evidence to justify a diagnosis of pneumoconiosis.
Dr. Zaldivar opined that Mr. White does not have radiographic
pneumoconiosis. Instead, his pulmonary impairment is the
result of smoking and asthma, unrelated to his occupation.
From a pulmonary standpoint, Dr. Zaldivar stated that 10%
impairment would be reasonable using prior spirometric
criteria. However, Dr. Zaldivar was of the opinion that there
is no impairment at all related to Mr. White's
employment, and he concluded that any percentage of
impairment previously awarded was due to asthma/chronic
obstructive pulmonary disorder caused by smoking and
unrelated to his unemployment.
Board conducted another hearing on January 3, 2018. The Board
reviewed the report from Dr. Zaldivar and the other documents
related to the New River Health studies that found an overall
impairment of 10%. Dr. Kinder opined there is an overall
impairment of 15%. However, given Mr. White's mild
wheezing and smoking history, he thought that the 10%
previously recommended is appropriate. The remaining 5%
impairment was attributed to smoking and Mr. White's
non-occupational bronchospastic disease. The OP Board
concluded that Mr. White has 10% impairment attributable to
his compensable conditions.
upon the OP Board's recommendation, the Office of Judges
affirmed the August 11, 2015, Order of the claims
administrator. The Office of Judges concluded that Mr. White
has no more than 10% whole person impairment for which he has
been compensated. The Board of Review affirmed the decision
of the Office of Judges in an Order dated June 11, 2018. Mr.
White appealed the Board's decision to this Court.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. There is
no objective medical evidence of record in this claim to
establish that Mr. White ...