                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 24, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
KIMBERLY J. SIMONS,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1761 (BOR Appeal No. 2046266)
                   (Claim No. 2010138026)

WEST VIRGINIA DIVISION OF HIGHWAYS,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Kimberly J. Simons, by William B. Gerwig III, her attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. The West Virginia
Division of Highways, by Nathanial A. Kuratomi, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 22, 2011, in
which the Board affirmed an August 11, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 28, 2010,
decision, which denied Ms. Simons’s claim because there was no objective evidence to suggest
that Ms. Simons developed an occupational disease in the course of and resulting from her
employment. 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.

        Ms. Simons worked for the Division of Highways. On May 22, 2010, Ms. Simons was
seen at Jackson General Hospital, complaining of sore throat and restriction of her airway. She
returned two days later with similar symptoms plus vomiting and was treated by Dr. Gaal. At
that time, Ms. Simons said her symptoms were caused by inhaling fumes while brush painting
signs at work on May 18, 2010. Dr. Gaal diagnosed Ms. Simons with partial airway obstruction
and allergy syndrome from inhalation of noxious paint fumes. Following her treatment, Ms.
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Simons applied for worker’s compensation benefits based on Dr. Gaal’s diagnosis. Dr. Gaal’s
report also contained a note, indicating that Ms. Simons had been evaluated by Dr. Crigger who
found that she had not suffered from an infection but had an allergic reaction to paint fumes. Ms.
Simons’s claim was then reviewed by Dr. Dauphin who found that there was no objective
medical evidence that paint fumes caused Ms. Simons’s symptoms. Dr. Dauphin also stated that
there was a sufficient delay between the alleged inhalation of fumes and her treatment for Ms.
Simons to have encountered a number of other things that could have caused her throat to swell.
Based on Dr. Dauphin’s report, the claims administrator rejected Ms. Simons’s application for
benefits on June 28, 2010. The Office of Judges affirmed the claims administrator’s decision on
August 11, 2011. The Board of Review then affirmed the Order of the Office of Judges on
December 22, 2011, leading Ms. Simons to appeal.

        The Office of Judges concluded that Ms. Simons failed to show that she sustained an
injury or incurred a disease in the course of and as a result of her employment. The Office of
Judges found the report of Dr. Dauphin persuasive. The Office of Judges also relied on the report
of Dr. Zaldivar, who found that Ms. Simons had a longstanding history of chronic allergy
problems. Dr. Zaldivar also found no connection between Ms. Simons’s symptoms and her
occupation. Dr. Zaldivar found that there was a significant delay between the date Ms. Simons
allegedly inhaled paint fumes and the date that she sought treatment. Dr. Zaldivar found that Ms.
Simons’s condition would have necessitated prompt treatment because her symptoms were
potentially life threatening. Finally, Dr. Zaldivar opined that Ms. Simons’s condition was not
caused by inhalation of paint fumes on May 18, 2010, but was most likely attributable to an
underlying non-work-related condition. The Office of Judges also found Dr. Zaldivar’s report to
be persuasive. The Board of Review adopted the findings of the Office of Judges and affirmed its
Order.

        We agree with the conclusion of the Board of Review. The medical evidence submitted
by Ms. Simons is not sufficient to demonstrate that she developed an occupational disease in the
course of and resulting from her employment. The treatment notes and opinion of Dr. Gaal relate
Ms. Simons’s condition to occupational causes but it does so in a conclusory manner without
providing specific objective medical evidence to demonstrate the causal connection. The report
of Dr. Zaldivar reflected a detailed evaluation of Ms. Simons’s condition and pointed out the
significant delay between the alleged paint inhalation and the onset of symptoms which caused
her to seek treatment. The significant delay in seeking treatment for a potentially life-threatening
condition indicates a cause other than the one Ms. Simons has alleged. The record as a whole
does not indicate that Ms. Simons developed a work-related 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: October 24, 2013
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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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