                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 3, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CARMON D. BURNS,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0489 (BOR Appeal No. 2048950)
                   (Claim No. 2006005892)

PINE RIDGE COAL COMPANY, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Carmon D. Burns, by Wendle D. Cook, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Pine Ridge Coal Company, LLC,
by Henry C. Bowen, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 21, 2014, in
which the Board affirmed an October 29, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 12, 2012,
decision which found Mr. Burns was fully compensated by his prior 15% 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. Burns, a coal miner, developed occupational pneumoconiosis in the course of his
employment. The Occupational Pneumoconiosis Board determined on March 30, 2006, that Mr.
Burns had thirty-four years of exposure to occupational dust and had developed no more than
15% impairment due to occupational pneumoconiosis. The award was presumptive as his x-rays
showed insufficient pleural or parenchymal changes to make a diagnosis of occupational
pneumoconiosis. Gregory Fino, M.D., performed a record review on August 14, 2007, in which
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he noted that Mr. Burns’s occupational history was sufficient to cause occupational
pneumoconiosis, and his smoking history was sufficient to cause obstructive lung disease and
bronchospasm. He noted that Mr. Burns did not have positive bronchodilator responses;
however, a lack of response to bronchodilators does not mean there is no bronchospasm. Dr.
Fino concluded that he had no more than 15% impairment due to occupational pneumoconiosis.

        On June 18, 2008, the Occupational Pneumoconiosis Board testified in a hearing before
the Office of Judges. Johnsey Leef, M.D., testified, on behalf of the Board, that Mr. Burns’s x-
rays from 1986 through 2006 do not show evidence of occupational pneumoconiosis. He stated
that Mr. Burns had 30% lung impairment. He also had a twenty year history of smoking. Dr.
Leef opined that 15% impairment due to occupational pneumoconiosis was appropriate. Jack
Kinder, M.D., also testified that he found no x-ray evidence of occupational pneumoconiosis. He
stated that Donald Rasmussen, M.D., found a score of 127 in a DLVA study while the Board’s
study, performed after Dr. Rasmussen’s, showed a score of seventy-six. Dr. Kinder opined that
occupational pneumoconiosis impairment is permanent and not expected to improve over time.
Bronchospastic disorders, however, can improve over time. Rajesh Patel, M.D., concurred with
Drs. Kinder and Leef.

        In July of 2008, the Office of Judges affirmed a claims administrator’s decision finding
that Mr. Burns was entitled to no more than a 15% permanent partial disability award. The Order
was then affirmed by the Board of Review. Mr. Burns again requested additional permanent
partial disability based upon a further reduction in his lung function. The claims administrator
found that he was fully compensated by his prior 15% permanent partial disability award on
January 12, 2012. The Occupational Pneumoconiosis Board testified in a hearing before the
Office of Judges on September 18, 2013. Dr. Kinder stated, on behalf of the Board, that Mr.
Burns’s total respiratory impairment was not due to occupational pneumoconiosis. He explained
that when someone has a bronchospastic disease for a long period of time, they become less
responsive to medication to treat it. Therefore, if someone is given medication and does not
respond to it, that does not mean they do not have a bronchospastic disorder. Any impairment
Mr. Burns has above 15% is due to non-occupational causes. Dr. Kinder stated that Mr. Burns
has a significant smoking history of a half a pack a day for twenty years. He concluded that Mr.
Burns has clinical evidence of occupational pneumoconiosis but no radiographic evidence of it.
Mr. Burns asserted in an affidavit that he smoked no more than a third to a half a pack of
cigarettes a day. He stated that he would smoke for a few years and then quit for a few, and he
smoked for around ten years out of a forty year period.

        The Office of Judges affirmed the claims administrator’s decision on October 29, 2013. It
stated that the Occupational Pneumoconiosis Board testified at a September 18, 2013, hearing
that Mr. Burns has total respiratory impairment, and the FEV1/FVC ratios did not change after
post-bronchodilator medication. The indication from the ratios is that Mr. Burns suffers from
occupational pneumoconiosis. The Office of Judges noted that regulations state that the lack of
change after bronchodilator medication can be an indicator of occupational pneumoconiosis.
However, when there is no change, it does not mean that there is no obstructive lung disease. The
clinical features and other findings were determined to indicate that Mr. Burns suffers from
asthma or obstructive lung disease. The Occupational Pneumoconiosis Board testified that Mr.
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Burns’s x-rays were not sufficient to establish a diagnosis of occupational pneumoconiosis. Six
x-rays from 1986 through 2011 were evaluated in reaching this determination. It was noted that
there were significant changes between 2006 and 2011 due to cardiac surgery. The 15%
permanent partial disability award that was granted previously was a presumptive award. The
Board testified that all impairment above 15% is due to non-occupational causes. It noted that
Mr. Burns has a significant smoking history. He stated in an affidavit that he smoked no more
than a half a pack per day for ten years; however, the Board found that the record shows he
smoked a half a pack a day for around twenty years. This was supported by Mr. Burns’s
carboxyhemoglobin measurement of 2.7, which was clinically elevated, and indicated an
association with a combustible product of smoke. The Occupational Pneumoconiosis Board
further found that he had 15% impairment in 1997 and total impairment by 2006. The Office of
Judges opined that it would be difficult to make a recommendation of increased impairment from
2006 to 2011 when Mr. Burns’s impairment has remained the same as far as being a total
impairment rating. The Office of Judges noted that he went from 15% impairment to total
impairment with no changes on his x-rays to show a progressive lung disease, such as
occupational pneumoconiosis. It was further determined that there is still no radiographic
evidence of occupational pneumoconiosis. The Office of Judges therefore held that Mr. Burns
failed to show that he is entitled to more than 15% impairment for occupational pneumoconiosis.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on April 21, 2014.

        On appeal, Mr. Burns argues that the Occupational Pneumoconiosis Board erred by
reducing his impairment by 85% to account for obstructive lung disease and smoking. He asserts
there is no evidence of obstructive lung disease. He further argues that there was no definitely
ascertainable degree of impairment due to non-occupational causes. Pine Ridge Coal Company,
LLC, asserts that the Occupational Pneumoconiosis Board’s conclusion that Mr. Burns was fully
compensated by his 15% permanent partial disability award is supported by the evidence of
record. It further argues that the Office of Judges did not err in showing the Board deference as is
required by statute. After review, we agree with the reasoning of the Office of Judges and the
conclusions of the Board of Review. The Occupational Pneumoconiosis Board’s opinion is
consistent with the evidentiary record, and the Office of Judges accorded it proper deference.
Fenton Art Glass Co. v. W. Va. Office of Ins. Comm’r, 222 W. Va. 420, 431, 664 S.E.2d 761, 772
(2008).

        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: February 3, 2015



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




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