                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                               March 27, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
RONALD E. FOX,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0594	 (BOR Appeal No. 2049031)
                   (Claim No. 2012035303)

VECELLIO & GROGAN, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Ronald E. Fox, by J. Robert Weaver, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Vecellio & Grogan, Inc., by Robert
Busse, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated May 20, 2014, in which
the Board affirmed a November 14, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 27, 2012,
decision rejecting the claim. 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.

        On April 11, 2012, Mr. Fox completed an application for workers’ compensation benefits
stating that he had been exposed to fine rock-like dust particles during the course of his
employment as a heavy equipment operator. Vishnu Patel, M.D., completed the physician’s
portion of the application and listed a diagnosis of occupational asthma secondary to chemical
exposure. Dr. Patel noted that he initially examined Mr. Fox on December 20, 2011. On July 10,
2012, Vecellio & Grogan, Inc., completed a report of occupational pneumoconiosis, which noted
that Mr. Fox was always in an enclosed cab while operating heavy equipment and further noted
that water was used at all job sites for the purpose of dust control. On August 7, 2012, the claims
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administrator denied Mr. Fox’s request for workers’ compensation benefits based on a finding
that he did not meet the statutory exposure requirements necessary to prosecute a claim for
occupational pneumoconiosis. Following multiple letters from Mr. Fox’s attorney indicating that
Mr. Fox has not filed a claim for occupational pneumoconiosis, the claims administrator issued a
second decision on August 27, 2012, rejecting the claim based on a finding that evidence has not
been submitted to supporting a finding that a hazardous exposure occurred or that Mr. Fox
developed an occupational disease as a result of a hazardous exposure.

        Mr. Fox has been hospitalized numerous times amid complaints of difficulty breathing,
culminating in a hospitalization at the University of Pittsburgh Medical Center. Treatment notes
from the course of Mr. Fox’s hospitalization at the University of Pittsburgh Medical Center note
that although it was suggested that Mr. Fox suffered from silicosis at the time of his admission,
no evidence of silicosis was ever found. He was instead diagnosed with a chronic cough arising
from gastroesophageal reflux disease, gastroparesis, frequent asthma exacerbations precipitated
by regurgitation, and vocal cord dysfunction/spasm relating to severe and uncontrolled reflux
disease and gastroparesis.

        On January 10, 2013, Mr. Fox was deposed. He testified that he developed breathing
problems in December of 2011, including a severe cough, following exposure to fine dust and
silica dust while participating in the construction of “Corridor H”, and also following exposure to
coal dust while employed at the site of a former surface mine. Mr. Fox further testified that the
presence of silica dust at the “Corridor H” job site was confirmed through independent core
sampling. Robert Kennedy, Safety Director for Vecellio & Grogan, disputed Mr. Fox’s assertion
that the presence of silica dust at the “Corridor H” job site was confirmed through core sampling
in an affidavit.

        On April 2, 2013, George Zaldivar, M.D., performed an independent medical evaluation.
He noted that Mr. Fox reported experiencing difficulty breathing and a chronic cough. Dr.
Zaldivar further noted that Mr. Fox reported exposure to silica dust as the precipitating factor for
his symptoms. However, Dr. Zaldivar opined that there is no evidence in the instant case to
justify a diagnosis of silicosis or any other dust-related disease of the lungs. Further, he noted
that the cough of which Mr. Fox complains has been attributed to chronic gastric reflux due to
pre-existent reflux disease and gastroparesis. Additionally, Dr. Zaldivar opined that there is no
evidence of any pulmonary disease or condition brought about by Mr. Fox’s employment and
also opined that Mr. Fox’s chronic cough is unrelated to his occupation. Finally, Mark Clarkson,
D.O., Mr. Fox’s personal physician, was asked to submit medical summaries, which he
completed on May 31, 2013, and July 2, 2013. In the medical summaries, Dr. Clarkson lists Mr.
Fox’s current diagnoses as gastroparesis, gastroesophageal reflux disease, vocal cord
dysfunction, hypertension, anxiety, insomnia, knee pain, aspiration pneumonia, diabetes mellitus,
tachycardia, and syncope.

       In its Order affirming the claims administrator’s August 27, 2012, decision, the Office of
Judges held that Mr. Fox has failed to show by a preponderance of the evidence that he
developed an occupational disease in the course of and resulting from his employment. The
Board of Review affirmed the Office of Judges’ Order in its decision dated May 20, 2014. On
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appeal, Mr. Fox asserts that the preponderance of the evidence establishes that he developed
occupational asthma in the course of and resulting from his employment.

        The Office of Judges found that although Mr. Fox continually asserts that exposure to
silica dust contributed to his symptoms, the evidence of record fails to establish a diagnosis of
silicosis. Moreover, in light of Mr. Kennedy’s affidavit, it is questionable whether exposure to
silica dust ever occurred. The Office of Judges then found that although Dr. Patel made a
diagnosis of occupational asthma, he was the only physician of record to do so. Finally, the
Office of Judges found that the preponderance of the evidence establishes that Mr. Fox’s
respiratory problems arise from severe gastroesophageal reflux disease and gastroparesis, neither
of which is causally connected to Mr. Fox’s employment. We agree with the reasoning and
conclusions of the Office of Judges as adopted and affirmed by the Board of Review. The
evidence of record clearly demonstrates that Mr. Fox’s symptoms are solely attributable to
gastroesophageal reflux disease and gastroparesis, and fails to establish any connection between
Mr. Fox’s current symptomology and an occupationally-induced respiratory disorder.

        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: March 27, 2015

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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