                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RANDALL BONDS,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0963 (BOR Appeal No. 2048303)
                   (Claim No. 2008020553)

VICA COAL COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Randall Bonds, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Vica Coal Company, Inc., by H. Toney
Stroud, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 27, 2013, in
which the Board affirmed an April 15, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 24,
2010, decision which granted Mr. Bonds 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. Bonds, a coal miner and roof bolter, developed occupational pneumoconiosis in the
course of his employment and his claim was held compensable on a non-medical basis on
February 1, 2008. The Occupational Pneumoconiosis Board determined on November 16, 2010,
that Mr. Bonds had 0% impairment due to occupational pneumoconiosis. X-rays showed that the
occupational pneumoconiosis had progressed slightly since a previous x-ray, but there was still
no permanent impairment. The claims administrator thereafter granted Mr. Bonds no permanent
partial disability award on December 24, 2010.
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       Donald Rasmussen, M.D., performed a pulmonary function analysis on August 23, 2011,
and found slight irreversible obstructive ventilatory impairment. The total lung capacity and
residual volume were normal. There was minimal resting hypoxia. The FEV1/FVC ratio was
71%. He assessed 10-15% impairment. He clarified in a letter that he made a handwritten
adjustment to Mr. Bonds’s partial pressure of oxygen value in order to adjust for altitude.

        The Occupational Pneumoconiosis Board testified in a hearing before the Office of
Judges on August 1, 2012. John Willis, M.D., testified on behalf of the Board that x-rays taken in
February of 2008 and November of 2010 show parenchymal opacities in all lung zones
consistent with occupational pneumoconiosis. There was a slight progression between the two x-
rays, but the progression was minimal and did not represent a loss in pulmonary function. Jack
Kinder, M.D., also of the Occupational Pneumoconiosis Board, testified that Dr. Rasmussen’s
pulmonary test and blood gas study, after an adjustment was made for altitude, would indicate
10% impairment. Mahendra Patel, M.D., also of the Occupational Pneumoconiosis Board,
concurred.

       An Occupational Lung Center blood gas study dated September 24, 2012, showed 15%
impairment at rest and normal results after exercise. Dr. Kinder, on behalf of the Occupational
Pneumoconiosis Board, again testified in a hearing before the Office of Judges on March 20,
2013. He stated that Dr. Rasmussen’s blood gas study appears to indicate 10% impairment. A
blood gas study from the Occupational Lung Center found 15% impairment at rest but no
impairment after exercise. Dr. Kinder asserted that Mr. Bonds’s results were normal after
exercise, which is indicative of no impairment for occupational pneumoconiosis. Because the
blood gas improved after exercise, there is no impairment that can be attributed to occupational
pneumoconiosis. Dr. Patel and Johnsey Leef, M.D., also of the Occupational Pneumoconiosis
Board, concurred.

        The Office of Judges affirmed the claims administrator’s decision in its April 15, 2013,
Order. The Office of Judges found that the evidence failed to establish that the Occupational
Pneumoconiosis Board was clearly wrong to determine that Mr. Bonds had no impairment due to
occupational pneumoconiosis. Dr. Kinder testified before the Office of Judges that a September
24, 2012, blood gas study reflected a resting impairment of 15%; however, after exercise, Mr.
Bonds’s blood gas was normal. Dr. Kinder stated that generally if one has impairment due to
occupational pneumoconiosis, their impairment increases with exercise. Because Mr. Bonds’s
impairment disappeared after exercise, he concluded that there was no impairment that could be
attributed to occupational pneumoconiosis. Drs. Patel and Leef concurred. The Office of Judges
noted that Mr. Bonds argued that Dr. Rasmussen’s August 23, 2011, findings reflect 10%
impairment and that Drs. Willis, Kinder, and Patel all agreed that the study showed 10%
impairment. However, the Office of Judges determined that Dr. Kinder’s testimony clearly
explained that the finding of no impairment due to occupational pneumoconiosis was based upon
the most recent blood gas study of record.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its August 27, 2013, decision. On appeal, Mr. Bonds argues that
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he is entitled to a 10% permanent partial disability award based upon Dr. Rasmussen’s report.
Vica Coal Company, Inc., asserts that the September 24, 2012, blood gas study shows that Mr.
Bonds has no impairment due to occupational pneumoconiosis. After review, this Court agrees
with the reasoning of the Office of Judges and the conclusions of the Board of Review. Though
the record indicates that Mr. Bonds may have some pulmonary impairment, as Dr. Kinder
asserted, it is not attributable to occupational pneumoconiosis.

        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: November 10, 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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