                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

DANNY REED,                                                                            FILED
Claimant Below, Petitioner                                                            July 9, 2020
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
vs.)   No. 19-0227 (BOR Appeal No. 2053516)                                        OF WEST VIRGINIA

                   (Claim No. 2016022754)

UNITED COAL COMPANY, LLC,
Employer Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Danny Reed, by Counsel Reginald D. Henry, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). United Coal Company,
LLC, by Counsel H. Toney Stroud, filed a timely response.

       The issue on appeal is the amount of impairment Mr. Reed sustained due to occupational
pneumoconiosis. The claims administrator granted Mr. Reed a 0% permanent partial disability
award for OP on September 8, 2016. On September 26, 2018, the Workers’ Compensation Office
of Judges (“Office of Judges”) affirmed the claims administrator’s decision. This appeal arises
from the Board of Review’s Order dated February 11, 2019, in which the Board of Review
affirmed the Order of the Office of Judges.

       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.

        On January 18, 2016, Mr. Reed filed an application for occupational pneumoconiosis
benefits. In his application, he indicated that he was last exposed to hazardous dust on September
11, 2014, when he stopped working due to a work-related back injury. Mr. Reed’s employment
history consists mostly of jobs within mining and construction industries. He was evaluated by A.
Mirza, M.D., of the New River Breathing Center on January 18, 2016. Ventilatory studies showed
a pre-bronchodilator FVC of 92% of predicted, an FEV1 of 95%, and an actual FEV1/FVC of 79.
Dr. Mirza diagnosed Mr. Reed with occupational pneumoconiosis and completed the Physicians’
Report of Occupational Pneumoconiosis on February 23, 2016. By claims administrator’s Order
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dated March 23, 2016, the claim was held compensable for occupational pneumoconiosis on a
non-medical basis but Mr. Reed was not entitled to the presumption that any chronic respiratory
disability resulted from his employment1.

        Mr. Reed was examined by the Occupational Pneumoconiosis Board (“OP Board”) on July
21, 2016. An x-ray impression of Mr. Reed’s chest showed insufficient pleural or parenchymal
changes to establish a diagnosis of occupational pneumoconiosis. Pulmonary function and
diffusion studies were performed and previous records were reviewed. The ventilator studies
conducted were within normal limits. The diffusion study showed a DLCO of 70% predicted. The
study also indicated that Mr. Reed had once been a smoker. At the time of testing, his
carboxyhemoglobin level was 1.8. The OP Board could not make a diagnosis of occupational
pneumoconiosis and opined that he had 0% pulmonary function impairment. On September 8,
2016, the claims administrator issued an Order granting no award based upon the findings of the
OP Board. Mr. Reed protested the claims administrator’s decision.

        In support of his protest, Mr. Reed provided an affidavit on October 10, 2016, explaining
that he was exposed to hazardous dust on a daily basis while working for Infinity Coal as an
electrician from June 4, 2012, to September 11, 2014, and for WV Mine Power as an electrician
in the coal mining industry from 2007 to 2012. He was also exposed to saw dust on a daily basis
while working as a lead cut man for Excel Homes from 2002 to 2007. Mr. Reed also stated that he
was intermittently exposed to dust while working in several other jobs over the years. He stated
that he believes that he was exposed to occupational dust hazards for at least ten of the fifteen
years immediately preceding his date of last exposure.

       An OP Board hearing was held on July 18, 2018, wherein the OP Board provided
testimony. Johnsey L. Leef Jr, M.D., the OP Board’s radiologist, testified that he did not see any
pathology in the x-rays that would indicate or correspond with a history of hazardous dust
exposure. Jack L. Kinder, M.D., Chairman of the OP Board, testified that there was an abnormality
on Mr. Reed’s diffusion study that would indicate approximately 10% impairment. However, Dr.
Kinder opined that there was insufficient evidence to justify a diagnosis of occupational
pneumoconiosis.

        By Order dated September 26, 2018, the Office of Judges affirmed the decision of the
claims administrator granting no award for occupational pneumoconiosis. The Office of Judges
noted that the OP Board is charged with determining all medical questions relating to occupational
pneumoconiosis cases and is to be given great deference in their decisions. Because the OP Board

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         A protestable non-medical Order was issued on March 23, 2016, finding that Mr. Reed
was not entitled to the presumption that any chronic respiratory disability resulted from his
occupational exposure. Mr. Reed did not protest the claims administrator’s non-medical Order.
The time limitation for non-medical findings contained in W. Va. Code § 23-4-15(b) is a condition
of the right to litigate the findings, and thus is jurisdictional. On November 17, 2016, Mr. Reed
requested that the claims administrator reconsider the non-medical ruling of March 23, 2016.
Because he did not file a protest to the claims administrator’s Order of March 23, 2016, the non-
medical determination constitutes the current law governing this case.
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concluded, in consideration of the non-presumptive status of Mr. Reed’s current application for
benefits, that there is insufficient evidence attributable to occupational impairment, the Office of
Judges affirmed the claims administrator’s decision. The Board of Review adopted the findings of
fact and conclusions of law of the Office of Judges and affirmed its Order on February 11, 2019.

        After review, we agree with the decision of the Board of Review. The OP Board found that
Mr. Reed does not have impairment attributable to occupational pneumoconiosis. The evidence
submitted by Mr. Reed does not support a position that the findings or conclusions of the OP Board
are clearly wrong.

        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: July 9, 2020

CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING:
Justice Margaret L. Workman




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