Appeal No. 2052490) (Claim No. 2016017899).
Rockspring Development, Inc., by Sean Harter, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Dennis Jewell, by Anne L.
Wandling, his attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
Mr. Jewell has as a result of occupational pneumoconiosis.
The claims administrator granted a 10% award on December 7,
2016. The Office of Judges affirmed the decision in its
January 9, 2018, Order. The Order was affirmed by the Board
of Review on June 29, 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
Jewell, a coal miner, developed occupational pneumoconiosis
as a result of thirty-eight years of exposure in the coal
mines. A December 7, 2014, treatment note from Three Rivers
Medical Center indicates Mr. Jewell presented with severe
anemia, but his lungs were clear. He was diagnosed with
stable chronic obstructive lung disease and anemia.
Jewell was examined by the Occupational Pneumoconiosis Board
and its findings were released on October 6, 2016. It found
that Mr. Jewell had 10% impairment as a result of
occupational pneumoconiosis. It noted an exposure history of
thirty-eight years. Mr. Jewell stopped working in December of
2014 due to anemia and breathing difficulties. He reported
shortness of breath for the past twenty years, sputum, and
occasional wheezing. The Board noted that Mr. Jewell was
diagnosed with asthma in 2005 and was treated for pleurisy in
the 1990s. He was diagnosed with chronic obstructive
pulmonary disease in 2005. On examination, he had mild
wheezing in both lung fields. Chest x-rays showed a hiatal
hernia. There was scarring at the lung bases. However, the
Board found insufficient evidence of pleural or parenchyma
abnormalities to establish a diagnosis of occupational
pneumoconiosis. It was noted that Mr. Jewell had a smoking
history of one pack per day for thirty years but had ceased
smoking twelve years prior. It was also noted that his
diffusion studies showed an FVC of 3.95 or 81% of predicted.
Mr. Jewell's FEV1 was 2.72 or 75% of predicted. His DLVA
was 3.95 or 76% of predicted and his carboxyhemoglobin was
October 20, 2016, treatment note by Melinda Elkins-Smith,
M.D., indicates Mr. Jewell was seen for chronic obstructive
lung disease and asthma. She assessed emphysema and
obstructive sleep apnea. Mr. Jewell's chronic obstructive
lung disease was stable and his breathing had improved since
he was started on a CPAP.
CT scan was performed on November 23, 2016, and showed
changes of chronic obstructive pulmonary disease and
emphysema. There was probable scarring in the lung bases and
a four millimeter pulmonary nodule. The impression was
chronic changes and unchanged mediastinal adenopathy.
Diffusion studies were performed at the Occupational Lung
Center on March 20, 2017. They indicate an FVC of 4.04 or 83%
of predicted. Mr. Jewell's FEV1 was 2.74 or 76% of
predicted. His DLVA was 3.86 or 75% of predicted and his
carboxyhemoglobin was 1.5.
hearing was conducted on December 6, 2017, in which members
of the Occupational Pneumoconiosis Board testified regarding
Mr. Jewell. Jack Willis, M.D., the Occupational
Pneumoconiosis Board's radiologist, stated that there had
been no x-ray diagnosis of occupational pneumoconiosis in
this case. He reviewed a CT scan which showed mild emphysema
and stated that he saw no evidence of occupational
pneumoconiosis or pleural plaques, which indicate the
presence of the disease. He opined that there was no
radiographic evidence of occupational pneumoconiosis. Jack
Kinder, M.D., also testified on behalf of the Occupational
Pneumoconiosis Board. He opined that Mr. Jewell's
diffusion studies show 10-15% impairment. It was his opinion
that Mr. Jewell had sustained 10% impairment as a result of
occupational pneumoconiosis. Dr. Kinder noted that chronic
obstructive pulmonary disease, which may include diseases
such as emphysema, anemia, and obstructive sleep apnea, are
all known causes of breathing impairment. Dr. Kinder opined
that Mr. Jewell has an overall breathing impairment of 15%.
He noted that Mr. Jewell worked in the coal mine for
thirty-eight years and stated that, based upon the
presumptive statue, he would recommend 10% impairment
attributable to occupational pneumoconiosis. Dr. Kinder
opined that this was a very close case given Mr. Jewell's
other breathing issues, but his recommendation remained 10%
impairment Mallinath Kayi, MD, also of the Occupational
Pneumoconiosis Board, concurred with Dr. Kinder.
claims administrator granted a 10% permanent partial
disability award on December 7, 2016. The Office of Judges
affirmed the decision in its January 9, 2018, Order. It found
that the Occupational Pneumoconiosis Board considered the
case and opined that Mr. Jewell had 10% impairment as a
result of occupational pneumoconiosis. Dr. Kinder testified
that he had 15% impairment overall due to numerous breathing
issues including emphysema, anemia, and sleep apnea. Dr.
Kinder found this to be a close case but remained of the
opinion that Mr. Jewell had 10% impairment due to
occupational pneumoconiosis. The Office of Judges concluded
that the Occupational Pneumoconiosis Board's findings
were not clearly wrong and affirmed the 10% permanent partial
disability award. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and
affirmed its Order on June 29, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Pursuant
to West Virginia Code §§ 23-4-6a and 23-4-8c, the
Occupational Pneumoconiosis Board makes the initial
determination of the extent of the claimant's pulmonary
disability. The Office of Judges may reverse the finding of
the Board only when the Board's decision is clearly
wrong. In this case, though Mr. Jewell has several pulmonary
conditions which can cause impairment, the Board's
finding of 10% impairment attributable to occupational
pneumoconiosis is not clearly wrong and was therefore
properly affirmed. Though there was no radiographic evidence
of occupational pneumoconiosis, Dr. Kinder based his
assessment of 10% impairment on Mr. Jewell's diffusion
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 ...