                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                 October 26, 2016
JERRY W. MCCRACKEN,                                                           RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                      OF WEST VIRGINIA


vs.)   No. 15-1083 (BOR Appeal No. 2050421)
                   (Claim No. 2008016195)

MOUNTAIN EDGE MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Jerry W. McCracken, by Reginald D. Henry, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Mountain Edge Mining, Inc., by
H. Toney Stroud, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 7, 2015, in
which the Board affirmed a April 1, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 31,
2013, decision to not grant additional permanent partial 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
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. McCracken, a coal miner for Mountain Edge Mining, Inc., applied for occupational
pneumoconiosis benefits in 2007. On December 10, 2007, the claims administrator held the
claim compensable on a non-medical basis. On July 19, 2012, a report about Mr. McCracken’s
spirometry testing revealed lung function impairment. On August 23, 2012, Mr. McCracken
submitted a permanent partial disability reopening application asserting he had an aggravation
and/or progression of his occupational pneumoconiosis.

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        Medical records from Plateau Medical Center dated August 27, 2012, though March 25,
2013, showed that Mr. McCracken had been reporting for follow-ups. An x-ray of the chest
revealed a small amount of increased density in the retrocardiac left lower lobe consistent with
vascular crowding and/or atelectasis infiltrate; a small pleural effusion was also noted. Mr.
McCracken admitted that he smoked one pack of cigarettes a day for thirty-five years. He
underwent an x-ray of the abdomen and chest. The x-ray of the abdomen revealed a nonspecific
abdominal gas pattern and questionable right renal calculi. The chest x-ray revealed right basilar
atelectasis and/or scarring. The final assessment was abdominal pain of an unknown etiology,
possible acute diverticulitis, hypertension, and chronic obstructive pulmonary disease.

        Donald Rasmussen, M.D., examined Mr. McCracken and produced a report of his
findings on February 7, 2013. Dr. Rasmussen opined the studies only indicated mild impairment
in resting lung function and would not indicate more than 5% impairment. On October 22, 2013,
the Occupational Pneumoconiosis Board examined Mr. McCracken and submitted its findings.
The Occupational Pneumoconiosis Board noted that he had thirty years of exposure and had
shortness of breath for ten to twelve years, which included a chronic cough and wheezing.
Physical examination of Mr. McCracken revealed that he was in good general clinical condition.
There were no rales. There was mild wheezing scattered throughout both lung fields. His heart
sounds were of good quality with no murmurs. The Occupational Pneumoconiosis Board
reviewed Mr. McCracken’s chest x-ray and concluded that it showed some nonspecific
consolidation at the right lung base, potentially scarring; however, a more acute infiltrate was not
excluded. Overall, the Occupational Pneumoconiosis Board noted there was insufficient
pulmonary parenchymal or pleural disease on which to establish a diagnosis of occupational
pneumoconiosis.

       On December 31, 2013, the claims administrator adopted the Occupational
Pneumoconiosis Board’s findings and concluded Mr. McCracken was fully compensated by his
prior award of 5% permanent partial disability. The members of the Occupational
Pneumoconiosis Board were called to testify at a hearing before the Office of Judges on January
21, 2015. Johnny Leef, M.D., testified that Mr. McCracken’s earlier two x-rays were within
normal limits. There was a minimal degree of scarring at the right lung base on the 2008 film,
and on the 2013 film there was an infiltrate at the right lung base which was most likely
representative of progressive scarring, but he noted they could not exclude an active process such
as pneumonia. He testified that they did not see evidence of occupational pneumoconiosis. Jack
Kinder, M.D., Chairman of the Occupational Pneumoconiosis Board, testified that he agreed
with Dr. Leef’s interpretation of the studies. Dr. Kinder opined that he suffered from 10% whole
person impairment but attributed half of the impairment to his over thirty-year smoking history.

        The Office of Judges determined that the Occupational Pneumoconiosis Board findings
and conclusions were supported by the evidence of record. The Office of Judges found that Mr.
McCracken had a significant smoking history. The Office of Judges also noted that the pathology
images did not reveal obvious occupational pneumoconiosis. The Office of Judges concluded
that a finding of 10% whole person impairment was supported by the evidence. The Office of
Judges also found that the Occupational Pneumoconiosis Board’s attribution of half the
impairment to non-work related causes was proper because Mr. McCracken had a significant
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smoking history and other non-work-related lung issues. The Board of Review adopted all the
material findings of the Office of Judges and affirmed its Order.

        After review, we agree with the consistent conclusions of the Office of Judges and the
Board of Review. The evidence indicates that there was minimal impairment and that clear
evidence of occupational pneumoconiosis was not found. Mr. McCracken had a significant
history of smoking so it was not clearly wrong for the Occupational Pneumoconiosis Board to
find that half of his impairment was non-work-related.

        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: October 26, 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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