                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ROGER L. HOSCHAR,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0745 (BOR Appeal No. 2049114)
                   (Claim No. 2011024256)

INDUSTRIAL CONTRACTORS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Roger L. Hoschar, by John H. Skaggs, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Industrial Contractors, Inc., by Jillian
L. Moore, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 30, 2014, in which
the Board affirmed a December 12, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s February 21, 2011, decision
denying Mr. Hoschar’s application for workers’ compensation 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. Hoschar was employed as a boilermaker for Industrial Contractors, Inc. Beginning in
2006 and continuing for thirteen months, Mr. Hoschar worked at the Philip Sporn Power Plant in
Mason County, West Virginia. The job site was often covered in pigeon droppings which had to
be cleaned away before Mr. Hoschar could begin repairing the boilers at the plant. On a daily
basis, Mr. Hoschar used an air hose to blow a significant amount of dried pigeon droppings away
from his work site. While performing these cleaning operations, Mr. Hoschar wore protective
overalls and a respirator, but he would still come in contact with some pigeon droppings. Several
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years after the job finished, Mr. Hoschar injured his knee. Mr. Hoschar underwent surgery at
Holzer Medical Center for this condition, and while preparing for surgery, an x-ray was taken of
his chest which showed a large mass in his right lung. Mr. Hoschar then underwent a lobectomy
at the Holzer Medical Center which revealed extensive bullous disease in the right lung. The
surgical report indicated that there was extensive necrotizing granulomatous inflammation but
the mass was negative for fungi and acid-fast bacillus. Mr. Hoschar was then treated by Frances
T. Agyei-Gyamfi, M.D., who believed that the mass was related to histoplasmosis. He believed
that the region Mr. Hoschar lived in was endemic for a histoplasmosis infection. Dr. Agyei-
Gyamfi noted, however, that the serology analysis of the mass was negative for all fungal
sources, including histoplasmosis, and therefore, the diagnosis was unlikely. Pathology testing
was also conducted at Ohio State University Medical Center because of the suspicion that the
mass was a histoplasmosis. The testing was negative for various types of fungus but did reveal a
few yeast-like cells in the lung mass that were consistent with histoplasmosis. Bruce A.
Guberman, M.D., then evaluated Mr. Hoschar. He noted that Mr. Hoschar had smoked two packs
of cigarettes a day for twenty-five years, but his impression was that the lung mass was a
histoplasmosis which he developed from exposure to pigeon droppings while working at the
Philip Sporn Power Plant.

        Following this evaluation, Mr. Hoschar filed an application for workers’ compensation
benefits alleging that the lung mass was caused by occupational exposure to pigeon droppings.
On February 21, 2011, the claims administrator rejected Mr. Hoschar’s application. Alan M.
Ducatman, M.D., examined Mr. Hoschar. He found that Mr. Hoschar had pre-existing chronic
obstructive pulmonary disease due to his significant history of cigarette smoking. However, Dr.
Ducatman believed that Mr. Hoschar’s lung mass was caused by histoplasmosis related to
exposure to pigeon droppings at the Philip Sporn Power Plant. Dr. Ducatman found that
exposure to bird droppings was a classic source of histoplasmosis. George L. Zaldivar, M.D.,
also evaluated Mr. Hoschar. He found that Mrs. Hoschar had also developed a histoplasmosis in
the eye which indicated that Mr. Hoschar’s lung mass was not occupationally related. Dr.
Zaldivar found that the record did not contain a consistent diagnosis of a histoplasmosis. He also
found that if the lung mass was related to histoplasmosis, it was more likely related to Mr.
Hoschar’s outdoor activities such as hunting and fishing because the fungus that causes
histoplasmosis was endemic to the region in which Mr. Hoschar lived. He also found that it was
unlikely that Mr. Hoschar developed histoplasmosis related to his work because he wore
protective equipment such as a respirator when he was exposed to pigeon droppings. Marsha
Bailey, M.D., also evaluated Mr. Hoschar. She found that he had chronic obstructive pulmonary
disease but that it was entirely related to his smoking history. She also found that the pathology
reports taken of the mass in Mr. Hoschar’s right lung did not reveal any evidence of
histoplasmosis. Although she found that the etiology of the lung mass was unclear, the medical
evidence did not draw a causal connection between his work and the condition. Following this
evaluation, Dr. Zaldivar issued an addendum report stating that he believed Mr. Hoschar had
developed histoplasmosis in his right lung prior to working at the Philip Sporn Power Plant. Dr.
Zaldivar pointed out that x-rays had been taken of Mr. Hoschar’s lungs in 2003 which showed
granuloma scar tissue in his lungs consistent with a diagnosis of histoplasmosis. On December
12, 2013, the Office of Judges affirmed the claims administrator’s decision. The Board of
Review affirmed the Office of Judges’ Order on June 30, 2014, leading Mr. Hoschar to appeal.
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       The Office of Judges concluded that there was no evidence that histoplasmosis was
responsible for Mr. Hoschar’s lung mass or that he contracted an occupational disease in the
course of and as a result of his employment at the Philip Sporn Power Plant. The Office of
Judges determined that Mr. Hoschar suffered from an ordinary disease of life or from
emphysema and chronic obstructive pulmonary disease from over twenty-five years of smoking.
The Office of Judges reached this determination based on the reports of Dr. Zaldivar. It
especially relied on his analysis of the 2003 chest x-rays and his opinion that the cause of the
mass in Mr. Hoschar’s lungs pre-dated his employment at Philip Sporn Power Plant. The Office
of Judges also found that the available pathology reports indicated that there was no known
etiology of the lung mass. The Office of Judges considered the pathology report from Ohio State
University Medical Center, but it found that the conclusions were not sufficiently supported in
the record. The Office of Judges found that this report was not sufficient to find that Mr.
Hoschar’s lung mass was related to histoplasmosis that was caused by his work. The Office of
Judges also considered the reports of Dr. Ducatman and Dr. Guberman, but it found that their
conclusions were dependent on the diagnosis from Ohio State University Medical Center and
were not consistent with the remainder of the evidence in the record. The Board of Review
adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Hoschar has not demonstrated that he contracted histoplasmosis, which developed
into the mass in his lungs, in the course of and resulting from his employment. The mass
removed from Mr. Hoschar’s right lung was initially attributed to histoplasmosis, but the
pathology testing of the mass was negative for all fungal sources including histoplasmosis. The
pathology reports are supported by the treatment notes of Dr. Agyei-Gyamfi. The report of Dr.
Zaldivar also indicates that it is unlikely that Mr. Hoschar developed histoplasmosis as a result of
his employment because he wore protective gear, including a respirator, while he was cleaning
away pigeon droppings at the Philip Sporn Power Plant. Dr. Zaldivar’s report further
demonstrates that the mass in Mr. Hoschar’s lung was likely an ordinary disease of life instead of
an occupational disease. The pathology report from Ohio State University Medical Center
revealed some fungal source consistent with histoplasmosis, but its conclusions were not
sufficiently supported by the remainder of the evidence in the record. The Office of Judges was
within its discretion in disregarding this pathology report and the opinions of Dr. Ducatman and
Dr. Guberman, which were based on the report’s conclusions.

        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: May 7, 2015


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

DISSENTING:
Justice Brent D. Benjamin




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