Appeal No. 2052661) (Claim No. 2016028928)
Mountain Laurel Resources, Inc., by T. Jonathan Cook, its
attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. Rocky Lane Brewer,
by Justin J. Marcum, his attorney, filed a timely response.
issue on appeal is permanent partial disability. The claims
administrator granted a 3.38% permanent partial disability
award for hearing loss on October 19, 2016. The Office of
Judges reversed the decision in its February 22, 2018, Order
and granted a 7.3% permanent partial disability award. The
Order was affirmed by the Board of Review on July 19, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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
Brewer, a roof bolter, sustained occupational hearing loss in
the course of and resulting from his work in the coal mines.
An audiogram was performed on May 10, 2016, by Gary Harris,
Ph.D., an audiologist. Mr. Brewer reported bilateral hearing
loss as a result of a high volume of noise at work. The
testing was reliable, and discrimination scores were 80% on
the right and 84% on the left. A. K. Katrib, M.D., signed the
report and interpreted the results as showing bilateral
sensorineural hearing loss directly attributable to or
aggravated by industrial noise exposure in the course of and
resulting from Mr. Brewer's employment. He found no
preexisting conditions that would have contributed to hearing
loss and assessed 7.783% impairment.
James Paine Jr., M.D., an otolaryngologist, evaluated Mr.
Brewer for hearing loss on August 30, 2016. He noted that Mr.
Brewer worked in underground coal mining for twenty-five
years as a roof bolter, scoop operator, shuttle car operator,
and drill operator. Mr. Brewer stated that he began noticing
hearing difficulties a year before he stopped working. An
audiogram was performed and showed 84% discrimination on the
right and 88% on the left. Dr. Paine noted that the results
showed a very similar type curve and discrimination scores as
the audiogram performed in May of 2016. Dr. Paine assessed
3.38% hearing loss. He noted that the impairment was
calculated using West Virginia Workers' Compensation
Paine completed a second hearing loss examination on February
27, 2017, in which he noted that discrimination scores were
68% on the right and 64% on the left. Dr. Paine noted that
Mr. Brewer's scores had dropped approximately 20% since
his evaluation in August of 2016. Dr. Paine assessed 7.3%
impairment. He opined that when read with the scores from
August of 2016, the impairment percentage would be 4.3%. He
further opined that the change in discrimination since the
August exam are not due to noise exposure since Mr. Brewer
was not exposed to occupational noise during that time.
claims administrator granted a 3.38% permanent partial
disability award on October 19, 2016. The Office of Judges
reversed the decision and granted a 7.3% permanent partial
disability award in its February 22, 2018, Order. It found
that audiograms are considered within acceptable limits if
their four frequency totals are within fifteen decibels or
less of each other and their audiometric curves are similar.
West Virginia Code of State Rules § 85-20-47.3 (2006).
The Office of Judges noted that Mr. Brewer was exposed to
excessive noise while working around heavy equipment for
twenty-eight years. The Office of Judges determined that Dr.
Paine's two reports were within test/retest validity,
while Dr. Katrib's was not. Therefore, it concluded that
Dr. Paine's reports must be used to determine permanent
partial disability. Dr. Paine's February 27, 2017, report
showed the highest percentage of impairment; however, the
Office of Judges found that he changed the original rating of
7.3% to 4.3% by improperly switching the speech
discrimination scores on that date with those obtained on
August 30, 2016. The Office of Judges concluded that West
Virginia Code of State Rules § 85-20 (2006) does not
allow for calculation of an impairment rating by such means.
Therefore, the Office of Judges found that the February 27,
2017, discrimination scores show the greatest impairment of
the only two tests of record that fell within test/retest
validity and that it must be afforded greater evidentiary
weight. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on July 19, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Dr.
Paine's reports were the most reliable assessment of
record of Mr. Brewer's occupational hearing loss. Though
he incorrectly apportioned his findings, the Office of Judges
was not wrong to find that Dr. Paine's pre-apportionment
findings were a reliable assessment of Mr. Brewer's
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 Elizabeth D. Walker Justice
Margaret L. Workman Justice Tim Armstead Justice Evan ...