                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
DANIEL LEE TENNEY,                                                              December 19, 2017
Claimant Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0543 (BOR Appeal No. 2051740)
                    (Claim No. 2016025210)

WEATHERFORD INTERNATIONAL, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Daniel Lee Tenney, by Robert L. Stultz, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Weatherford International, Inc., by
T. Jonathon Cook, its attorney, filed a timely response.

       The issue on appeal is the compensability of the claim. On April 8, 2016, the claims
administrator denied Mr. Tenney’s application for benefits. The Office of Judges affirmed the
denial of the claim in its December 14, 2016, Order. The Order was affirmed by the Board of
Review on May 19, 2017. 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 March 8, 2016, Mr. Tenney, a service manager with Weatherford International Inc.,
completed an Employee’s and Physician’s Report of Occupational Injury or Disease alleging he
developed occupational asthma over time due to exposure to dust, explosives, smoke, and oil and
gas vapors during the course of his employment. His last date of exposure was February 28,
2014. The physician’s portion of the claim was completed by Salam Rajjoub, M.D., who had
been treating Mr. Tenney since June 25, 2008. He diagnosed Mr. Tenney with obstructive sleep
apnea and indicated this was a direct result of an occupational disease. A January 25, 2016, letter
written by Dr. Rajjoub indicated that Mr. Tenney’s diagnoses included asthma with
exacerbation, shortness of breath, cough, wheezing, obstructive sleep apnea, obesity, and
insomnia. Dr. Rajjoub opined the asthma was related to Mr. Tenney’s work environment.
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        Following the rejection of the claim by the claims administrator, Mr. Tenney filed a
protest. He testified by deposition on June 2, 2016, that he is six feet tall, weighs 327 pounds,
and is a non-smoker. His last position at Weatherford International, Inc., required him to inspect
and service quality, check other employees on location, give field tests, and assist with safety and
inventory, among other things. He traveled to eight districts, two of which were in West
Virginia. He was exposed to oil and gas vapors, dust, and secondhand smoke. He experienced
shortness of breath when he walked any distance, when it was too hot outside, when it was too
cold outside, and when he climbed stairs. He first noticed his breathing problems in the 1990’s.
However, the first time he noticed a problem at work was in February of 2005. He was walking
to a location he was unable to access by vehicle when he felt like he could not breathe. He had to
stop walking and rest for a few minutes. After that incident, his family physician referred him to
Dr. Rajjoub, who he sees about every four months. Mr. Tenney said he takes medication for his
asthma, and uses an inhaler. He had one asthma attack while he was working and that was in
2006. The attack happened while he was walking up a slight incline, back to his truck.

       Christopher Martin, M.D., performed an independent medical evaluation on Mr. Tenney
and prepared a written report on August 17, 2016. Mr. Tenney told Dr. Martin that he had been
having episodes of shortness of breath and feeling like he was going to die since he had the first
episode in 2010. The episodes include chest tightness, wheezing, and dry cough. None of these
have occurred without exertion and end when the activity stops. The episodes occur outside of
the workplace. Mr. Tenney advised Dr. Martin that his position at Weatherford International was
eliminated, so he chose to take early retirement. Upon examination, Dr. Martin noted
auscultation of the chest revealed normal air entry throughout with no crackles or wheezing. In
Dr. Martin’s opinion, the clinical picture was atypical for asthma as Mr. Tenney was always
exerting himself when the symptoms occurred but they did not last beyond the exertion. The
pulmonary function testing did not support a diagnosis of asthma. Mr. Tenney had restrictive
abnormalities, not the findings of asthma that were obstructive in nature. In Dr. Martin’s opinion,
the abnormalities were classically associated with Mr. Tenney’s obesity. Additionally, the
medical records showed his shortness of breath was not subjectively relieved by bronchodilators.
Dr. Martin could not diagnose any lung disease process. Mr. Tenney noted his symptoms had
been worsening even though he left the workplace in 2014.

        By Order entered December 14, 2016, the Office of Judges affirmed the claims
administrator’s rejection of the claim. It found the report of Dr. Martin to be the most persuasive
evidence of record. Dr. Martin explained his findings fully and explained in detail why he did not
believe Mr. Tenney suffered from asthma. It relied on Dr. Martin’s opinion and found Mr.
Tenney failed to prove he suffered from occupational asthma. Dr. Martin opined that the fact that
the episodes Mr. Tenney described always occurred when he was exerting himself, but resolved
when the exertion was stopped, was not a typical picture of asthma. The pulmonary function
testing did not support a diagnosis of asthma as it showed restrictive abnormalities, not
obstructive abnormalities, which is seen in asthma. In Dr. Martin’s opinion, the abnormalities
were classically associated with Mr. Tenney’s obesity. Additionally, the medical records showed
his shortness of breath was not subjectively relieved by bronchodilators. Dr. Martin was unable
to diagnose any pulmonary issue related to Mr. Tenney’s work.

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       On May 19, 2017, the Board of Review affirmed the Office of Judges’ decision and
adopted the findings of fact and conclusions of law of the Office of Judges. After review, we
agree with the Board of Review. Mr. Tenney failed to prove that he had occupational asthma. He
stopped working in 2014, but his symptoms worsened after he retired. His symptoms only occur
with exertion and stop when the exertion stops. And the restrictive abnormalities that were
present were not the findings of asthma. Additionally, Dr. Rajjoub, Mr. Tenney’s treating
physician, listed the diagnosis as obstructive sleep apnea on the claim application.

        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: December 19, 2017

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




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