                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 16, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RICHARD LESTER,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1344 (BOR Appeal No. 2047370)
                   (Claim No. 2003008163)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER

Commissioner Below, Respondent


and


K & J ENERGY, INC.,

C & S MINING CORPORATION,

SOUTHERN GOLD MINING, INC.

and BLUE FALCON MINING, INC.,

Employers Below, Respondents



                             MEMORANDUM DECISION
       Petitioner Richard Lester, by John Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Mark Bramble, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 7, 2012, in
which the Board affirmed a May 30, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 29, 2011,
decision which held that Mr. Lester was fully compensated by his prior 25% permanent partial
disability award and was therefore not entitled to an additional permanent partial disability
award. 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
by oral argument. Upon consideration of the standard of review, the briefs, and the record
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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. Lester, a coal miner, developed occupational pneumoconiosis due to hazardous dust
exposure in the course of his employment. He was granted a total award of 25% permanent
partial disability by the claims administrator on April 4, 2009. Subsequent pulmonary testing
revealed that Mr. Lester’s lung impairment had increased to 30%. Though Mr. Lester’s
impairment increased, the Occupational Pneumoconiosis Board determined on March 15, 2011,
that he was entitled to no more than 25% permanent partial disability for his compensable
occupational pneumoconiosis. Jack Kinder, M.D., testified, on behalf of the Occupational
Pneumoconiosis Board, in a hearing before the Office of Judges on May 5, 2012, that Mr. Lester
did in fact suffer from 30% lung impairment; however, only 25% of that impairment was
attributable to occupational pneumoconiosis. The other 5% was determined to be the result of
cigarette smoking. He acknowledged that there had been a slight progression in Mr. Lester’s lung
impairment, but he remained of the opinion that only 25% of the impairment was due to
occupational pneumoconiosis. Bradley Henry, M.D., also of the Occupational Pneumoconiosis
Board, concurred.

        The claims administrator determined on April 29, 2011, that Mr. Lester had been fully
compensated by his prior award of 25% permanent partial disability and was therefore not
entitled to an additional permanent partial disability award. The Office of Judges affirmed the
claims administrator’s decision in its May 30, 2012, Order. It found that the evidentiary record
failed to establish that the Occupational Pneumoconiosis Board’s determination was clearly
wrong. Significant weight was given to the Board’s finding that 5% of Mr. Lester’s lung
impairment was caused by cigarette smoking. Mr. Lester argued that his x-rays reflected a
progression of his lung impairment. Dr. Kinder and Dr. Henry testified on behalf of the
Occupational Pneumoconiosis Board and agreed that the x-rays revealed a progression.
However, Dr. Kinder opined that due to Mr. Lester’s cigarette smoking history and the fact that
he ceased working in June of 2001, no additional impairment could be attributed to occupational
pneumoconiosis. Consequently, the Office of Judges held that he was entitled to no more than a
25% permanent partial disability award due to occupational pneumoconiosis.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its November 7, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. Mr. Lester has a significant cigarette
smoking history, and there is no evidence on the record to indicate that the Occupational
Pneumoconiosis Board’s decision was incorrect.

        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.


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                                   Affirmed.

ISSUED: April 16, 2014

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




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