                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                 FILED
COLUMBIA WEST VIRGINIA CORPORATION,                                              May 16, 2013
Employer Below, Petitioner                                                  RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1213 (BOR Appeal No. 2045609)
                    (Claim No. 2008029844)

TERRY L. BROWN,
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Columbia West Virginia Corporation, by Julia R. Callaghan, its attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. Terry L.
Brown, by Reginald D. Henry, his attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated July 25, 2011, in which
the Board affirmed a January 19, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s March 12, 2008, order. 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. Terry L. Brown was working as a mechanic in a pulpwood processing area for
Columbia West Virginia Corporation when he developed symptoms of shortness of breath and
difficulty breathing. Mr. Brown sought diagnosis and treatment for his condition before filing a
workers’ compensation claim on February 4, 2008, for restrictive lung disease.

       On April 24, 2007, Mr. Brown was evaluated by Dr. Steven Koenig, who noted that Mr.
Brown performed peak flow evaluations while he was away from his workplace, but not while at
the workplace. Dr. Koenig diagnosed Mr. Brown with possible work-related asthma. Mr.
Brown’s treating physician, Dr. Jessica Murphy, eventually diagnosed him with restrictive lung
disease that worsens when he is around exposure at work.
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        The employer argues that the claimant’s appeal of the claims administrator’s order
denying the compensability of his claim is statutorily barred. However, the Office of Judges in
an order dated January 15, 2010, found “it appears claimant only received the notice [of denial]
on October 9, 2009,” and granted the claimant a late filing of a protest to the March 12, 2008,
order rejecting the claim.

        “Once a prima facie claim is established by the claimant and the employer fails to offer
medical evidence to refute the medical causation, refusal of the claim for lack of medical
causation is reversible error as it is based on pure conjecture.” Hoult v. Workers’ Compensation
Commissioner, 181 W.Va. 551, 383 S.E. 2d 516 (1989). The Office of Judges noted that the
employer provided no other explanation for Mr. Brown’s pulmonary condition. The Office of
Judges found that Mr. Brown had established a prima facie case supporting the compensability
of his claim and that the employer failed to offer medical evidence refuting compensability of the
claim. The Office of Judges held that the preponderance of the evidence supports a finding that
Mr. Brown developed a restrictive pulmonary disease in the course of and as a result of his
employment. The Office of Judges reversed the claims administrator’s order denying
compensability. The Board of Review came to the same reasoned conclusion. We agree that
Mr. Brown has established a prima facie case supporting the compensability of his restrictive
lung disease.

        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: May 16, 2013

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




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