                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 11, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JUDY L. TREADWAY,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1402 (BOR Appeal No. 2047199)
                   (Claim No. 2010118982)

FAYETTE COUNTY COMMISSION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Judy L. Treadway, by Gregory S. Prudich, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Fayette County Commission, by
Marion E. Ray, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 24, 2012, in
which the Board affirmed a May 4, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s January 13, 2010, decision
denying Ms. Treadway’s workers’ compensation application. 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.

        Ms. Treadway worked as a tax deputy for Fayette County Commission from October of
2003 until July of 2009. She worked in the first floor of a concrete building that was partially
underground, damp, musty, and had flooded multiple times. She suffered from several
respiratory, sinus, and ear infections over a period of several years. Ms. Treadway filed a
workers’ compensation application on November 28, 2009. The claims administrator rejected the
claim and found that the disability complained of was not due to an injury or disease received in
the course of and resulting from her employment.
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        The Office of Judges affirmed the claims administrator’s decision and found the claim
was not compensable. The Board of Review affirmed the Order of the Office of Judges. On
appeal, Ms. Treadway disagrees and asserts that Karen Hultman, D.O., and Alan Ducatman,
M.D., have diagnosed her with chronic sinusitis and bronchitis and agree with Christopher
Martin, M.D., that the environment in the building was of such poor quality that it could cause
her upper respiratory symptoms and those of her co-workers. Ms. Treadway further argues that
all three doctors agree that in instances where individuals improve when removed from the
environment and where multiple individuals suffer from similar symptoms as she has
experienced with her work environment that the likelihood of a relationship between the
environment and the sickness increases. Fayette County Commission maintains that Ms.
Treadway failed to prove her illnesses came from exposure to mold at her workplace and that the
only evidence that is not based on speculation is the opinion of Dr. Martin who concluded that
Ms. Treadway did not have a compensable claim. Fayette County Commission further maintains
that Ms. Treadway was not exposed to abnormal amounts of mold at work because air qualities
studies showed that the mold outside was similar to the air quality of mold inside.

        As the Office of Judge pointed out, there is a large amount of evidence in this case;
however, there is no physician stating that Ms. Treadway has an occupationally related disease.
Even the physician’s portion of the Report of Injury was left blank. Ms. Treadway has issues
with chronic sinusitis, but she has failed to provide evidence that her chronic sinusitis or any
other diagnosis is an occupationally acquired condition. Dr. Ducatman diagnosed Ms. Treadway
with chronic sinusitis with several exacerbating factors, including building issues as described
and ongoing cigarette smoking. The Office of Judges determined that the building environment
being an exacerbating factor is not the same thing as the building environment being the causal
agent in Ms. Treadway’s chronic sinusitis. Furthermore, the mold inspection reports found
relatively low exposure to abnormal levels of mold spores. Dr. Martin concluded that extensive
testing was performed on Ms. Treadway’s lungs and that her lungs were normal. The Office of
Judges concluded that, even though the building where Ms. Treadway worked has issues,
ultimately there is no medical opinion that states Ms. Treadway has an occupationally acquired
disease.

       We agree with the reasoning and findings of the Board of Review and the Office of
Judges. There is no medical evidence to support that Ms. Treadway has an occupationally
acquired disease. Ms. Treadway has failed to prove she has suffered an occupational injury or
disease, and therefore, her claim is not compensable.

        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:


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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