                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RICKY ESTEPP,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0247 (BOR Appeal No. 2047816)
                   (Claim No. 2011023992)

ARCH COAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Ricky Estepp, by John C. Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Arch Coal, Inc., by Lisa Warner Hunter, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 20, 2013, in
which the Board affirmed an October 5, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 12, 2011,
decision granting Mr. Estepp no permanent partial disability award for occupational
pneumoconiosis. The 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.

        Mr. Estepp worked as an underground coal miner for Arch Coal, Inc. On November 9,
2010, Mr. Estepp filed an application for workers’ compensation benefits related to his exposure
to the hazards of inhaling minute particles of coal dust throughout his employment history. His
claim was submitted to the Occupational Pneumoconiosis Board, which took x-rays of Mr.
Estepp’s chest and compared them to x-rays taken on November 19, 1998, related to a prior
workers’ compensation application. The Board determined that there was insufficient evidence
of pleural or parenchymal abnormality to establish a diagnosis of occupational pneumoconiosis.
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On July 12, 2011, the claims administrator granted Mr. Estepp no permanent partial disability
award. The Occupational Pneumoconiosis Board then testified in a hearing before the Office of
Judges and repeated its finding that the evidence did not establish a diagnosis of occupational
pneumoconiosis. The Board also testified that the diffusion studies in the record could not be
used to determine Mr. Estepp’s pulmonary impairment because his high carboxy hemoglobin
levels during these studies were indicative of cigarette smoking and prevented an accurate
measurement of his diffusion capacity. In the hearing, the Board was asked to consider a May
11, 1994, settlement decision from the State of Kentucky, in which Mr. Estepp was granted an
award related to coal miner’s pneumoconiosis. The Board, however, determined that there was
no evidence of Mr. Estepp’s pulmonary impairment attached to the settlement decision. On
October 5, 2012, the Office of Judges affirmed the claims administrator’s decision. The Board of
Review affirmed the Order of the Office of Judges on February 20, 2013, leading Mr. Estepp to
appeal.

        The Office of Judges concluded that the record was insufficient to support a diagnosis of
occupational pneumoconiosis and that there was no evidence of impairment attributable to
occupational pneumoconiosis. The Office of Judges further concluded that the Occupational
Pneumoconiosis Board’s decision was not clearly wrong and Mr. Estepp was, therefore, not
entitled to a permanent partial disability award related to occupational pneumoconiosis. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Estepp has not demonstrated that he has occupational pneumoconiosis or that he is
entitled to any permanent partial disability award. In Fenton Art Glass Co. v. West Virginia
Office of Insurance Commissioner, this Court held that the Occupational Pneumoconiosis Board
was to be afforded “considerable deference on medical matters related to the diagnosis and, if
any, impairment related to occupational pneumoconiosis.” 222 W. Va. 420, 431, 664 S.E.2d 761,
772 (2008). There is nothing in the record indicating that the Occupational Pneumoconiosis
Board should not be afforded deference in this case. The Occupational Pneumoconiosis Board
has consistently found that there is insufficient evidence of pleural or parenchymal changes to
establish a diagnosis of pneumoconiosis. The Occupational Pneumoconiosis Board has also
consistently found that there is no evidence of Mr. Estepp’s pulmonary impairment related to
occupational pneumoconiosis. The only evidence in the record supporting Mr. Estepp’s position
is the May 11, 1994, settlement decision from the State of Kentucky, but this is insufficient to
justify a permanent partial disability award, especially in light of the Occupational
Pneumoconiosis Board’s consistent opinion.

        For the 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 affirmed.

                                                                                        Affirmed.


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ISSUED: June 27, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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