                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              December 3, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
FOUAD M. HASSAN,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0844	 (BOR Appeal No. 2047995)
                    (Claim No. 2011041447)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

RG STEEL WHEELING, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Fouad M. Hassan, by Patrick K. Maroney, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. West Virginia Office of Insurance
Commissioner, by Mary Rich Maloy, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 26, 2013, in which
the Board affirmed a December 6, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s June 30, 2011, decision that
denied Mr. Hassan’s application for workers’ compensation benefits. The Office of Judges held
the claim compensable for acute exacerbation of chronic obstructive pulmonary disease. The
Office of Judges denied compensability for chronic obstructive pulmonary disease and
exacerbation of asthma and refused to grant Mr. Hassan any additional temporary total disability
benefits. Mr. Hassan is appealing the Board of Review’s denial of chronic obstructive pulmonary
disease, exacerbation of asthma, and additional temporary total disability 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
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by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Mr. Hassan has worked as an oven patcher and crane operator for RG Steel Wheeling,
LLC at two locations for approximately thirty-nine years. Mr. Hassan alleges that he was
exposed daily to coke dust, smoke, and several chemicals. He filed an application for workers’
compensation benefits and requested temporary total disability benefits. Sanasagar Morisetty,
M.D., concluded that Mr. Hassan has work-related acute exacerbation of chronic obstructive
pulmonary disease and exacerbation of asthma. Attila A. Lenkey, M.D., opined that Mr. Hassan
had chronic obstructive pulmonary disease. Dr. Lenkey further opined work-related dust
exposure caused an obstructive airway process that manifested as asthma. The claims
administrator denied the application for workers’ compensation benefits by concluding there was
no medical evidence to support the claim.

        The Office of Judges reversed the claims administrator’s decision and held the claim
compensable for acute exacerbation of chronic obstructive pulmonary disease but denied the
requests to add chronic obstructive pulmonary disease and exacerbation of asthma as
compensable conditions and additional temporary total disability benefits. The Office of Judges
further held the claim compensable on a no lost time basis with medical benefits restricted only
to treatment of Mr. Hassan’s acute exacerbation of his pre-existing chronic obstructive
pulmonary disease. The Board of Review affirmed the Order of the Office of Judges. On appeal,
Mr. Hassan disagrees and asserts that any pre-existing condition is clearly related to his exposure
in the steel mills where he was exposed to chemicals, smoke, and dust and that there has been no
exposure outside of work. He further asserts that Dr. Morisetty found that he could not perform
his work duties due to his occupational asthma. West Virginia Office of Insurance Commissioner
maintains that the record does not demonstrate that Mr. Hassan’s chronic obstructive pulmonary
disease is work-related but rather shows that it was pre-existing in nature.

        Dr. Morisetty diagnosed Mr. Hassan with occupational acute exacerbation of chronic
obstructive pulmonary disease on the Report of Injury application. The Office of Judges found
that the medical evidence supported the addition of acute exacerbation of chronic obstructive
pulmonary disease as a compensable condition. This Court agrees with the Office of Judges and
the Board of Review that the medical evidence does support the addition of acute exacerbation of
chronic obstructive pulmonary disease as a compensable condition.

        However, the Office of Judges incorrectly denied the addition of chronic obstructive
pulmonary disease and acute exacerbation of asthma as compensable conditions. Dr. Lenkey
diagnosed Mr. Hassan with chronic obstructive pulmonary disease and noted that Mr. Hassan is a
lifetime non-smoker. Dr. Morisetty concluded that Mr. Hassan had an occupational exacerbation
of asthma, and Dr. Lenkey concluded that, due to Mr. Hassan’s dust exposure at work, he had
developed an obstructive airway process that manifested as asthma. On the Report of Injury
application, Dr. Morisetty diagnosed Mr. Hassan with acute exacerbation of chronic obstructive
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pulmonary disease and occupational exacerbation of asthma. Dr. Morisetty also believed that
Mr. Hassan could not work from April 20, 2011, until July 10, 2011. This Court finds that there
is sufficient medical evidence to support holding chronic obstructive pulmonary disease and the
exacerbation of asthma as compensable conditions. Since Dr. Morisetty found these
compensable diagnoses prevented Mr. Hassan from returning to work, this Court also grants Mr.
Hassan temporary total disability benefits from April 20, 2011, through July 10, 2011.

        For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record in so far as it did not add
the exacerbation of asthma and chronic obstructive pulmonary disease as compensable
conditions and did not grant temporary total disability benefits from April 20, 2011, until July
10, 2011. Therefore, the decision of the Board of Review is reversed and remanded with
instructions to add the exacerbation of asthma and chronic obstructive pulmonary disease as
compensable conditions and to grant temporary total disability benefits from April 20, 2011,
until July 10, 2011.

                                            Affirmed in part and Reversed and Remanded in part.


ISSUED:


CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum

DISSENTING:
Justice Brent D. Benjamin
Justice Allen H. Loughry II

Justice Loughry, dissenting:

        I write separately because I strenuously disagree with the majority’s decision to add
chronic obstructive pulmonary disorder as a compensable component of Mr. Hassan’s claim. In
this case, the claimant did not allege that he developed chronic obstructive pulmonary disease
from his employment on his application for benefits. Instead, he alleged that he suffered an
exacerbation of the disease. The Office of Judges concluded that the chronic obstructive
pulmonary disease was pre-existing and not sufficiently supported by the medical evidence in the
record. The only issue before the Office of Judges was the exacerbation of chronic obstructive
pulmonary disease. Because there has been no determination on the merits below that the

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claimant’s chronic obstructive pulmonary disorder was a result of his employment, I believe that
the decision to find the condition compensable is erroneous.

       Also, the majority’s decision is not only contrary to the evidence of record, the holding is
inconsistent with the process for establishing the compensability of occupational diseases as
required by West Virginia Code § 23-4-1 (2008) and West Virginia Code of State Rules §85-1­
13 (2009). The majority should have remanded the issue of compensability of the disease to the
Office of Judges, the trier of fact, for a determination of whether or not the condition is
compensable.

       For these reasons, I respectfully dissent from the majority’s decision in this matter.




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