                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                September 22, 2017
KEITH D. GIBSON,                                                               RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-1117 (BOR Appeal No. 2051344)
                   (Claim No. 2014001954)


ARACOMA COAL COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Keith D. Gibson, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Aracoma Coal Company, Inc., by
Sean Harter, its attorney, filed a timely response.

        The issue on appeal is whether there is any permanent partial disability related to
occupational pneumoconiosis. The claims administrator found that there was no permanent
partial disability related to occupational pneumoconiosis on March 31, 2014. The Office of
Judges affirmed the claims administrator’s decision on May 27, 2016. The Board of Review
affirmed the Order of the Office of Judges on October 25, 2016. 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. Gibson, a coal miner for Aracoma Coal Company, Inc., completed and signed a
report of occupational pneumoconiosis on March 11, 2013, alleging that he had been exposed to
the hazards of occupational pneumoconiosis for fifteen to twenty years. On July 2, 2013, a
physician’s report of occupational pneumoconiosis was completed and signed by Abdul Mirza,
M.D., of the New River Breathing Center. Mr. Gibson complained of dyspnea on walking short
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distances. He never had pneumonia, pleurisy, asthma, tuberculosis, angina pectoria, coronary
occlusion, rheumatic heart disease, or congestive heart failure. Mr. Gibson has arthritis joint
pain. Chest x-rays and pulmonary function studies were obtained on April 9, 2013, and the
doctor noted suppressed breath sounds.

       The case was referred to the Occupational Pneumoconiosis Board and they issued a
February 13, 2014, report. The Occupational Pneumoconiosis Board stated it could not make a
diagnosis of occupational pneumoconiosis. The Occupational Pneumoconiosis Board concluded
that Mr. Gibson had been exposed to a dust hazard for approximately twenty-eight years. The
Occupational Pneumoconiosis Board reviewed the New River Breathing Clinic pulmonary
function study performed on April 9, 2013, as well as the Occupational Pneumoconiosis Board’s
findings on physical examination by members, pulmonary function studies, and x-rays of the
chest. The Occupational Pneumoconiosis Board noted that Mr. Gibson was diagnosed with
chronic obstructive pulmonary disease in 2012. Mr. Gibson was in good general clinical
condition and was not in any respiratory distress at rest. There were no rales or wheezing present.
There was an irregular heartbeat. Exercise was not performed due to irregular heartbeat. Chest
views show insufficient pleural or parenchymal changes to establish a diagnosis of occupational
pneumoconiosis. Based on these findings the Occupational Pneumoconiosis Board could not find
occupational pneumoconiosis or any impairment related to it. Accordingly, the claims
administrator denied a permanent partial disability award on March 31, 2014.

        On May 20, 2015, a hearing was held before the Occupational Pneumoconiosis Board.
John Willis, M.D., the Occupational Pneumoconiosis Board radiologist reviewed the single
frontal projection chest film dated February 13, 2014, which was of good quality and showed no
parenchymal or pleural disease to document occupational pneumoconiosis and no other disease
process. He found insufficient evidence to diagnose occupational pneumoconiosis. Jack Kinder,
M.D., chairman of the Occupational Pneumoconiosis Board, agreed with Dr. Willis’s
interpretation. The Occupational Pneumoconiosis Board’s study of February 13, 2014, was
normal. The single breath diffusion study showed a carboxyhemoglobin of 2.7, which was within
acceptable limits. Mr. Gibson’s DLCO was 76% of its predicted value and his DL/VA was 82%
of its predicted value. The DL/VA was used to make a recommendation of impairment
originally. Dr. Kinder noted that in April or May of 2014, the Occupational Pneumoconiosis
Board began using the DLCO more heavily in cases of occupational pneumoconiosis and Mr.
Gibson herein would have 10% impairment based on the presumptive statute. After much
deliberation, Dr. Kinder opined that the DLCO was a more appropriate measure of Mr. Gibson’s
impairment that the DL/VA. He attributed 10% impairment to occupational pneumoconiosis.
There is insufficient evidence to rebut the presumption that any chronic respiratory impairment
Mr. Gibson has is due to his occupational exposure. A smoking history does not necessarily
cause impairment. Mr. Gibson had no abnormalities related to his smoking habit. There was no
other disease process revealed on the x-ray. Dr. Kinder opined that in most cases the DLCO
would be the most accurate reflection of actual diffusion in regards to pneumoconiosis. Dr. Patel
agreed with Dr. Willis and Dr. Kinder. He concluded Mr. Gibson had 10% impairment of
pulmonary function based on the diffusion abnormality. The Occupational Pneumoconiosis
Board noted that neither the Occupational Pneumoconiosis Board’s study nor the New River
study noted rales or wheezing. Dr. Henry noted that Mr. Gibson does not have obstructive lung
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disease. His spirometry is normal so he does not have permanent impairment caused by chronic
obstructive pulmonary disease. He is treated with Advair and ProAir which is used to treat
chronic obstructive pulmonary disease or other issues like intermittent bronchospasm, seasonal
asthma.

        The Office of Judges issued a May 28, 2015, Order which reversed the claims
administrator decision and Mr. Gibson was granted a 10% award for occupational
pneumoconiosis. The Adjudicator stated that it is apparent that the Occupational Pneumoconiosis
Board has some latitude regarding the testing it relies on to determine the percentage of
pulmonary impairment. The Occupational Pneumoconiosis Board permissibly found that in the
instant matter the DLCO is the more appropriate indicator of Mr. Gibson’s impairment and
clearly articulated the basis for this decision. The Adjudicator concluded that the opinion of the
Occupational Pneumoconiosis Board at hearing is not clearly wrong in view of the reliable,
probative, and substantial evidence on the whole record, and based on the Occupational
Pneumoconiosis Board’s recommendations, found that Mr. Gibson has 10% impairment due to
occupational pneumoconiosis. The employer appealed this decision and by Order dated October
13, 2015, the claim was remanded to the Office of Judges to issue a new time frame order to
allow for the full and complete development of the evidence and at the appropriate time,
schedule another hearing with the Occupational Pneumoconiosis Board. By Order of the Office
of Judges dated November 13, 2015, the claim was returned to litigation and the parties given
additional time to complete evidentiary development.

         On December 28, 2015, Mr. Gibson reported to the Occupational Lung Center for testing.
His test was interpreted as a better study than the previous one and that the DLCO and the
DL/VA and the re- and post-bronchodilator results were all within normal limits. On May 4,
2016, a hearing was held at the Occupational Pneumoconiosis Board. Dr. Willis identified films
of good quality, showing no evidence of parenchymal or pleural occupational pneumoconiosis.
Dr. Kinder reviewed the December 28, 2015, report from the Occupational Lung Center noting it
was the better study and that the DLCO and the DL/VA and the pre- and post-bronchodilator
results were all within normal limits. Based on that report and other evidence of record, Dr.
Kinder concluded that there was insufficient evidence to justify a diagnosis of occupational
pneumoconiosis and no permanent impairment. Mr. Gibson acknowledged a thirty-five-pack­
year history of cigarette smoking which would be sufficient to cause shortness of breath. Mr.
Gibson also had a history of wheezing, a symptom of chronic obstructive pulmonary disease
with which Mr. Gibson was diagnosed in 2012. The Occupational Pneumoconiosis Board opined
that this was caused by the cigarette smoking. It was noted that Mr. Gibson’s pulmonary function
improved between February 13, 2014, and December 28, 2015. Because occupational
pneumoconiosis is a permanent disease, the Occupational Pneumoconiosis Board found that this
improvement would not be expected in a person who suffers from occupational pneumoconiosis.
The Occupational Pneumoconiosis Board concluded that any temporary impairment reflected in
the February 13, 2014, diffusion capacity study would be due to some other factor besides
occupational pneumoconiosis. Dr. Kinder noted that the December 28, 2015, study did not
contain a carboxyhemoglobin because of technical problems at the lab that day. However, even if
it is assumed that Mr. Gibson has an elevated carboxyhemoglobin he still had a normal flow. The
Occupational Pneumoconiosis Board explained that the carboxyhemoglobin test is used to
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invalidate when there is an abnormal diffusion. The Occupational Pneumoconiosis Board
concluded that not having a carboxyhemoglobin test in this instance was immaterial. The
Occupational Pneumoconiosis Board found that Mr. Gibson did not suffer from occupational
pneumoconiosis and had no whole person impairment related to occupational pneumoconiosis.

        The Office of Judges found that Mr. Gibson was not entitled to any permanent partial
disability related to occupational pneumoconiosis. The Office of Judges noted that the
Occupational Pneumoconiosis Board could not make a diagnosis of occupational
pneumoconiosis. The Office of Judges found that Mr. Gibson was diagnosed with chronic
obstructive pulmonary disease in 2012. The chest images showed insufficient pleural or
parenchymal changes to establish a diagnosis of occupational pneumoconiosis. Dr. Willis, the
Occupational Pneumoconiosis Board radiologist, found insufficient evidence to diagnose
occupational pneumoconiosis. Dr. Kinder noted the December 28, 2015, study was the better
study and Mr. Gibson’s DLCO, DL/VA, and pre- and post-bronchodilator results were all within
normal limits. Based on that report and other evidence of record, Dr. Kinder concluded that there
was insufficient evidence to justify a diagnosis of occupational pneumoconiosis and no
permanent impairment due to the same. The Office of Judges found that the findings of the
Occupational Pneumoconiosis Board at the May 4, 2016, hearing were not clearly wrong and
adopted its findings. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order on October 25, 2016.

       After review, we agree with the decision of the Office of Judges as affirmed by the Board
of Review. The Occupational Pneumoconiosis Board after much deliberation concluded that
there was no evidence of occupational pneumoconiosis and no reliable evidence of permanent
impairment. The Office of Judges adopted the conclusions of the Occupational Pneumoconiosis
Board. Because the Occupational Pneumoconiosis Board’s decision was supported by the
evidence and was not clearly wrong, the Office of Judges and Board of Review were correct in
adopting its conclusion.

        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.

ISSUED: September 22, 2017


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




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