                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOHNNY M. SIMPKINS,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0935 (BOR Appeal No. 2046693)
                   (Claim No. 2011005918)

ARACOMA COAL COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Johnny M. Simpkins, by Wendle Cook, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Aracoma Coal Company, Inc., by
Sean Harter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 12, 2012, in which
the Board affirmed a November 16, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 5, 2011,
decision which denied compensability of the claim. 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. Simpkins, a coal miner, alleges that he developed hearing loss in the course of his
employment as the result of exposure to hazardous levels of industrial noise. He was evaluated
by Charles Abraham, M.D., in August of 2005. Dr. Abraham diagnosed him with sensorineural
hearing loss. Using the American Medical Association’s Guides to the Evaluation of Permanent
Impairment, (4th Edition, 1993), he determined that Mr. Simpkins suffered from 18.4% whole
person impairment due to occupational hearing loss. R. Austin Wallace, M.D., also evaluated
Mr. Simpkins and determined in his March 3, 2006, independent medical evaluation that his
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hearing loss could not be attributed to industrial noise exposure. He found that due to the
directionality of the noise, Mr. Simpkins was exposed to higher levels of noise on the left side.
He found that there had been no significant change in Mr. Simpkins’s hearing since his pre­
employment exam. This indicated that Mr. Simpkins suffered no hearing loss while he was
employed at Aracoma Coal Company, Inc. The claims administrator denied a claim for
occupational hearing loss on March 22, 2006.

       In February of 2009, Mr. Simpkins was evaluated by Gary Harris, Ph. D. He diagnosed
Mr. Simpkins with moderately severe bilateral sensorineural hearing loss. He found that this
diagnosis was consistent with Mr. Simpkins’s reported history of noise over-exposure. Joseph
Touma, M.D., also evaluated Mr. Simpkins in 2009 and determined that he had a history of
progressive bilateral hearing loss since 1995. Using the American Medical Association’s Guides,
he determined that Mr. Simpkins suffered from 16.5% whole person impairment.

         Mr. Simpkins was reevaluated by Dr. Wallace on March 4, 2011. In a letter to the claims
administrator, Dr. Wallace opined that Mr. Simpkins’s hearing loss is very atypical for noise
induced etiology. He stated that noise induced hearing loss cannot cause flat sensorineural
hearing loss as seen in Mr. Simpkins’s right ear nor can it cause ascending hearing loss as seen in
his left ear. He determined that while it was possible Mr. Simpkins’s high-frequency hearing loss
could have been the result of steady occupational noise exposure from various employers, the
lack of progression of his hearing loss at Aracoma Coal Company, Inc., eliminates the possibility
of any permanent partial disability related to occupational hearing loss while he was employed
there.

        Dr. Wallace elaborated in a deposition on August 12, 2011, that he eliminated noise
exposure as a cause of Mr. Simpkins’s hearing loss. He testified that Mr. Simpkins’s hearing loss
configuration was incompatible with occupation-induced hearing loss. He found that Mr.
Simpkins has ascending hearing loss between 250 hertz and 500 hertz that cannot arise as the
result of noise exposure. Dr. Wallace also found asymmetry of low frequency hearing which also
cannot occur as the result of noise exposure. He stated that classically, occupational noise
exposure causes the greatest hearing loss at 3000 hertz to 4000 hertz with recovery at 8000 hertz.
Mr. Simpkins’s hearing is actually better at the 3000 hertz to 4000 hertz range than it is at 8000
hertz. Dr. Wallace testified that he remained of the opinion that Mr. Simpkins suffered no
progression of noise-induced hearing loss while he was employed by Aracoma Coal Company,
Inc.

        The claims administrator denied the claim for occupational hearing loss on April 5, 2011.
The Office of Judges affirmed its decision in its November 16, 2011, Order. It found that Mr.
Simpkins failed to establish that his hearing loss resulted from exposure to hazardous levels of
noise in the course of his employment at Aracoma Coal Company, Inc. The Office of Judges
noted that Mr. Simpkins filed a prior claim for hearing loss that was rejected in March of 2006.
Dr. Wallace examined him on two occasions and determined that his hearing loss was not
attributable to his work environment and was most likely the consequence of aging. The Office
of Judges found that Mr. Simpkins’s hearing loss pattern was not typical of noise-induced
hearing loss.
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       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 12, 2012, decision. This Court agrees with the reasoning
and conclusions of the Board of Review. A preponderance of the evidence indicates that Mr.
Simpkins did not suffer from occupation-related hearing loss in the course of his employment for
Aracoma Coal Company, Inc.

        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 7, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman

Justice Brent D. Benjamin, disqualified




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