                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

MELVIN E. SMITH,                                                                 FILED
Claimant Below, Petitioner                                                    April 25, 2019
                                                                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
vs.)   No. 18-0625 (BOR Appeal No. 2052571)                                     OF WEST VIRGINIA
                   (Claim No. 2015029952)

KINGSTON MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Melvin E. Smith, by John H. Shumate, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Kingston Mining, Inc., by T. Jonathan
Cook, its attorney, filed a timely response.

        The issue on appeal is the amount of permanent partial disability attributable to
occupational pneumoconiosis. On April 8, 2016, the Self-Insured Employer granted Mr. Smith
no additional permanent partial disability award because he had been found to be fully
compensated by a prior award for occupational pneumoconiosis. The Workers’ Compensation
Office of Judges affirmed the Self-Insured Employer’s decision on January 29, 2018. This appeal
arises from the Board of Review’s Final Order dated June 26, 2018, in which the Board affirmed
the January 29, 2018, Final Decision of the Office of Judges.

       The Court has carefully reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for consideration. 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. Smith was employed by Kingston Mining, Inc., as a rock duster from July 6, 1998, to
November 10, 2014. He has been in the mining industry since 1975. In the course of his duties as
a miner, Mr. Smith has been exposed to the hazards of occupational pneumoconiosis for
approximately 40 years.


                                               1
        Mr. Smith filed an Employee’s Report of Occupational Pneumoconiosis on March 20,
2015. The Physician’s Report of Occupational Pneumoconiosis, dated April 20, 2015, was
signed by A. Mirza, M.D. Dr. Mirza diagnosed Mr. Smith with coal workers’ pneumoconiosis.
Mr. Smith also submitted a pulmonary function study conducted by Maria Boustani, M.D., dated
September 16, 2014, and, a chest x-ray report of Afzal Ahmed, M.D., dated April 14, 2015. On
August 5, 2015, the claims administrator entered a non-medical ruling holding Mr. Smith’s claim
compensable, stating that he is entitled to the presumption that any chronic respiratory disability
resulted from his employment pursuant to West Virginia Code § 23-4-8c(b) (2018). The claim
was referred to the Occupational Pneumoconiosis Board (“OP Board”) for its review and
disposition.

       Mr. Smith was examined by the OP Board on February 18, 2016. After a physical
examination, pulmonary testing was performed and chest x-rays were taken. The OP Board
concluded that they could not make an x-ray diagnosis of occupational pneumoconiosis.
However, the OP Board found sufficient evidence to justify a diagnosis of occupational
pneumoconiosis with no more than 10% pulmonary function impairment attributable to the
disease granted in a prior claim. Based upon the OP Board’s findings, the claims administrator
entered an Order dated April 8, 2016, determining that Mr. Smith was fully compensated by his
prior 10% permanent partial disability award previously granted in Claim No. 990035699. Ms.
Smith protested the decision of the claims administrator.

         In support of his protest, Mr. Smith submitted the Medical History and Examination for
Coal Mine Workers’ Pneumoconiosis Form signed by Charles E. Porterfield, D.O., with an
arterial blood gas study and a pulmonary function test, both conducted on October 6, 2016. Mr.
Smith also submitted a February 13, 2017, Recalculation of Pulmonary Function Data Report,
signed by Kimberly D. Burford, R.P.F.T. Ms. Burford is the Director of the Occupational Lung
Clinic. The pulmonary function study performed by Dr. Porterfield revealed an FVC of 2.74 and
76% of predicted normal; an FEV1 of 2.02 and 72% of predicted normal; and, an FEV1/FVC
ratio of 74. Due to altitude fluctuations, the recalculated pulmonary function study revealed an
FVC of 2.74 (pre) and 68% of Kory predicted normal, a FEV1 of 2.02 and 66% of Kory
predicted normal, and a FEV1/FVC ratio of 74%. The FVC of 68% predicted normal would
support a 15% permanent partial disability award, and the FEV1 of 66% predicted normal would
support a 20% permanent partial disability award pursuant to the West Virginia Code of State
Rules § 85 -20-A (2009).

        A final hearing was held before the OP Board on December 6, 2017. After reviewing the
x-rays and pulmonary reports, the OP Board concluded that there is insufficient pulmonary,
parenchymal or pleural disease to establish a diagnosis of occupational pneumoconiosis. The OP
Board indicated that its decision was made after taking into account Mr. Smith’s exposure to
dust, as well as the fact that his claim was being considered under the statutory presumption set
forth in West Virginia Code § 23-4-8c(b). All three studies of record, spanning a three-year
period, were considered by the OP Board. It was concluded that without a change in x-ray
evidence, the OP Board would take the higher volumes as being the most representative of
possible permanent disease. Testing for the diffusing capacity of the lungs for carbon monoxide

                                                2
revealed a borderline value of 78, which would represent 10% impairment. The OP Board did
not find any radiographic evidence that there had been a progression of the disease.

        In a Final Decision dated January 29, 2018, the Office of Judges affirmed the claims
administrator’s decision dated April 8, 2016, wherein Mr. Smith was found fully compensated by
his prior 10% permanent partial disability award attributable to occupational pneumoconiosis.
The Office of Judges concluded that the OP Board found sufficient evidence to support a
diagnosis of occupational pneumoconiosis but that Mr. Smith had no additional pulmonary
impairment attributable to the disease. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its decision on June 26, 2018.

       After review, we agree with the reasoning and conclusions of the Office of Judges, as
affirmed by the Board of Review. The evidence of record establishes a diagnosis of occupational
pneumoconiosis. However, the evidence also establishes that Mr. Smith does not have additional
pulmonary impairment due to occupational pneumoconiosis that is greater than the award he was
previously granted in another claim. In the absence of evidence showing that the OP Board’s
findings are clearly wrong, the Board of Review did not err in affirming the Office of Judges’
decision.

        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: April 25, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




                                                3
