                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                  FILED
                                                                                September 30, 2016
                                                                              RORY L. PERRY II, CLERK
STUART E. RICHARDS,                                                         SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                      OF WEST VIRGINIA



vs.)   No. 15-1065 (BOR Appeal No. 2050425)
                   (Claim No. 2012033845)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

L R CONSTRUCTION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Stuart E. Richards, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Jaqueline A. Hallinan, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 2, 2015, in
which the Board affirmed an April 17, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 11, 2013,
decision which granted Mr. Richards a 0% 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
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.

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        Mr. Richards, a welder, alleges that he developed occupational pneumoconiosis in the
course of his employment. An April 5, 2012, employees’ report of occupational pneumoconiosis
states he was last exposed in 1994 and had been exposed for ten to twelve years. A physician’s
report of occupational pneumoconiosis listed a diagnosis of simple occupational pneumoconiosis
for the past three to four years. He had coughing and wheezing and used oxygen at night.

        On April 5, 2012, a chest x-ray was interpreted by Afzal Ahmed, M.D., as showing
simple occupational pneumoconiosis, pleural thickening, chronic obstructive pulmonary disease,
and bullae. Spirometry showed early obstructive pulmonary impairment. It was noted that the
condition could be a small airway disease or the early stages of emphysema. It was possibly
reversible in nature so repeat testing following bronchodilator was recommended. It was noted
that Mr. Richards had been exposure to coal and rock dust for twenty years. He had a thirty-five
pack year history and quit smoking four years prior.

        On December 6, 2012, the Occupational Pneumoconiosis Board concluded that it could
not make a diagnosis of occupational pneumoconiosis. It stated that the chest x-ray revealed
insufficient pulmonary parenchymal or pleural disease for a diagnosis of occupational
pneumoconiosis. The claims administrator thereafter granted Mr. Richards a 0% permanent
partial disability award on January 11, 2013.

        Members of the Occupational Pneumoconiosis Board testified in a hearing before the
Office of Judges on January 21, 2015. Johnsey Leef, M.D., stated that he did not make an x-ray
diagnosis of occupational pneumoconiosis. He disagreed with Dr. Ahmed’s interpretation of
April 5, 2012, x-rays. He stated that Dr. Ahmed misinterpreted overexposure on the x-ray as
emphysema. Jack Kinder, M.D., agreed with Dr. Leef’s assessment. Dr. Kinder stated that
various tests, including a spirometry, appeared to be valid and reproducible. They showed 15%
impairment. He also testified that the Occupational Pneumoconiosis Board performed similar
testing, including pre and post-bronchodilator studies, and such testing showed 15% impairment.
However, since this is a non-presumptive claim with a negative x-ray, Dr. Kinder opined that the
15% impairment was not due to occupational pneumoconiosis. He opined that most, if not all, of
Mr. Richards’s impairment was due to bronchospastic disease related to cigarette smoking.
Bradley Henry, M.D., concurred.

        The Office of Judges affirmed the claims administrator’s decision on April 17, 2015. It
found that Mr. Richards has a forty pack year smoking history. Also, the Occupational
Pneumoconiosis Board did not make an x-ray diagnosis of occupational pneumoconiosis. It
stated that given that the claim was a non-presumptive claim with a negative x-ray, it could not
recommend any impairment attributable to occupational pneumoconiosis. The Occupational
Pneumoconiosis Board further found that the 15% impairment found was attributable to Mr.
Richards’s cigarette smoking history. The Office of Judges agreed with the Occupational
Pneumoconiosis Board. The Board of Review adopted the findings of fact and conclusions of
law of the Office of Judges and affirmed its Order.



                                               2
       After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. Mr. Richards argues that the Office of Judges and Board of Review failed to
consider the evidence demonstrating that he has occupational pneumoconiosis as well as Dr.
Kinder’s testimony that he has 10% pulmonary impairment as a result. He asserts Dr. Kinder
adjusted the impairment rating down from 15% to account for cigarette use. A review of the
hearing in question shows that Dr. Kinder’s statement was in response to a hypothetical question.
Based on the evidence of record, he found 0% impairment attributable to occupational
pneumoconiosis.

        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: September 30, 2016

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




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