                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              November 14, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
JERRY W. ROAT,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0845	 (BOR Appeal No. 2048093)
                    (Claim No. 2011036666)


SPARTAN MINING COMPANY,
Employer Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Jerry W. Roat, by Robert M. Williams, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Spartan Mining Company, by Sean
Harter, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 5, 2013, in
which the Board affirmed a January 11, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 16,
2011, decision denying Mr. Roat’s application for workers’ compensation benefits. 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. Roat worked as an underground electrician for Spartan Mining Company. On
February 7, 2011, he was cutting down the rock box and belt head so that it could be moved to a
different section of the mine. He used a torch to cut the rock box and belt down in a neutral area
of the mine, which he stated is not ventilated and has no fresh air. Mr. Roat alleges it produced a
great amount of smoke and fumes. He further alleges since the metallurgical coal was left in the
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rock box that it produced hazardous dust and fumes. Mr. Roat filed an application for workers’
compensation benefits. The claims administrator denied Mr. Roat’s application for workers’
compensation benefits and concluded that his condition did not occur in the course of and as a
result of his employment.

        The Office of Judges affirmed the claims administrator’s decision and found that Mr.
Roat failed to show by a preponderance of the evidence that he sustained an occupational injury
or disease. The Board of Review affirmed the Order of the Office of Judges. On appeal, Mr. Roat
disagrees and asserts that David Manuta, Ph.D., who has a doctorate in Chemistry, found that the
burning of metallurgical coal in the rock box produced ammonia, carbon monoxide, sulfur
dioxide, phosgene, nitrogen dioxide, and chlorine gases. He asserts that Dr. Manuta considered
the neutral area that he was working in along with the amount of time he was in this area and
concluded that his acute respiratory disease syndrome was directly caused from the inhalation of
these toxic gases. Spartan Mining Company maintains that a preponderance of the evidence
establishes that Mr. Roat contracted community acquired pneumonia, an ordinary disease of life
that developed into acute respiratory distress syndrome but was not related to Mr. Roat’s work.
Spartan Mining Company further points out that Mr. Roat stated on an Emergency Department
form for Montgomery General Hospital on February 11, 2011, that his condition was not a work-
related injury or illness and that he had not been exposed to hazardous chemicals requiring
immediate decontamination. It further maintains that this earlier admission that came four days
after the onset of symptoms by Mr. Roat is clearly more reliable and probative on the
compensability issue than the theory that came months later, which claimed Mr. Roat’s
symptoms resulted from work activity.

        The Office of Judges found that Mr. Roat failed to prove that he had sustained an
occupational injury or disease on February 7, 2011. The Office of Judges considered the
February 9, 2011, report of S.S. Jamie, M.D., and Montgomery General Hospital’s report dated
February 11, 2011. The Office of Judges pointed out that there was no indication in either of
these reports that Mr. Roat’s symptoms were consistent with an occupational exposure illness or
that an occupational exposure had even occurred. The Office of Judges also noted that Mr. Roat
was seen at Montgomery General Hospital again on February 13, 2011, and still there was no
mention of an occupational exposure related illness. At Montgomery General Hospital, Mr. Roat
was diagnosed with pneumonia and acute respiratory failure. Mr. Roat was also seen at Beckley
Appalachian Regional Hospital by Ugoala Banks, M.D., who found Mr. Roat had community
acquired pneumonia, Charles Porterfield, M.D., who diagnosed him with atypical pneumonia,
and David Facello, D.O., who found respiratory distress with possible pneumonia. None of the
medical records from any of these physicians supported a finding of occupational exposure. In
addition, Jack L. DePreist, M.D., diagnosed Mr. Roat with community acquired pneumonia
progressing into acute respiratory disease syndrome, and Alex Michael Ng, M.D., also diagnosed
Mr. Roat with acute respiratory disease syndrome and found that the cause was unknown.
Neither of these two physicians found evidence that supported a finding of an occupational
exposure. Furthermore, the Office of Judges stated that Dean Steinman, D.O., Mohammed I.
Ranavaya, M.D., and George L. Zaldivar, M.D., all concluded that Mr. Roat had community
acquired pneumonia that progressed into acute respiratory disease syndrome, and these three

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physicians opined that the medical evidence of record did not support a finding that Mr. Roat’s
condition was related to an occupational exposure.

       Mr. Roat submitted the medical findings of Stephen E. Popper, D.O., and the expert
opinions of Dr. Manuta and Robert A. C. Cohen, M.D., in his favor. The Office of Judges also
considered these reports. Dr. Popper opined that Mr. Roat suffered acute respiratory failure due
to exposure to acetylene, and Dr. Manuta opined that Mr. Roat developed acute respiratory
disease syndrome as a result of occupational exposure to toxic gases, such as ammonia, carbon
monoxide, sulfur dioxide, phosgene, nitrogen dioxide, and chlorine. Dr. Cohen opined that Mr.
Roat had developed acute respiratory disease syndrome primarily as a result of smoke inhalation.
The Office of Judges found that although Dr. Popper, Dr. Cohen, and Dr. Manuta all opined that
there was occupational exposure, these physicians did not necessarily agree on the nature of the
exposure. The Office of Judges found that the physicians’ reports failed to offer a unified or
sharply focused theory for occupational exposure and causation in this claim and most
importantly their opinions are not consistent with the weight of the medical evidence of record.
The Office of Judges concluded that the weight of the evidence of record supports a finding that
Mr. Roat contracted a community acquired pneumonia that progressed into acute respiratory
disease syndrome and this finding is supported by the medical opinions of Dr. Steinman, Dr.
Ranavaya, and Dr. Zaldivar, as well as the medical records of Dr. Jamie, Montgomery General
Hospital, Beckley Appalachian Regional Hospital, and Charleston Area Medical Center.

        We agree with the findings of the Board of Review and the Office of Judges. Mr. Roat
has failed to show by a preponderance of evidence that his condition was causally related to his
work. Mr. Roat has submitted one physician and two experts’ reports that found his condition to
be occupationally related. However, as the Office of Judges noted these reports are not consistent
on Mr. Roat’s exposure and causation or with the majority of the medical evidence. The majority
of the physicians and medical evidence did not find a causal connection between Mr. Roat’s
condition and his employment and found that Mr. Roat had pneumonia instead of an
occupational disease. The majority of the medical evidence clearly fails to show Mr. Roat’s
suffered an occupational 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: November 14, 2014

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

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DISSENTING:
Justice Margaret L. Workman


Justice Brent D. Benjamin disqualified.





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