                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
KENNA JOHNSTON,                                                               September 12, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1740 (BOR Appeal No. 2045980)
                   (Claim No. 2010120621)

CRW WEST VIRGINIA,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Kenna Johnston, by John H. Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. CRW West Virginia, by H. Toney
Stroud, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated November 30, 2011, in
which the Board affirmed a May 13, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges modified the claims administrator’s January 20, 2010,
decision denying Mr. Johnston’s application for workers’ compensation benefits for occupational
pneumoconiosis. 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. Johnston worked in several positions for CRW West Virginia (Quikrete) beginning
on March 2, 2007. He was diagnosed with occupational pneumoconiosis on June 5, 2009, by Dr.
Mehta. On January 20, 2010, the claims administrator denied Mr. Johnston’s application for
workers’ compensation benefits, and found that the injury did not occur in the course of and
resulting from his employment.

       The Office of Judges modified the claims administrator’s Order, and held that Mr.
Johnston failed to meet the requirements of West Virginia Code § 23-4-1 (2008). On appeal, Mr.
Johnston argues that Dr. Mehta, as his treating physician, is in the best position to diagnose
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occupational pneumoconiosis, and that his opinion is supported by appropriate diagnostic testing
along with medical history, thus, the claim should be held compensable. CRW West Virginia
maintains that the denial of workers’ compensation benefits was proper, and notes that there are
several inconsistencies in Mr. Johnston’s testimony regarding his history of breathing problems
and the use of respirators.

        The Office of Judges concluded that Mr. Johnston failed to establish that he was exposed
to the hazards of occupational pneumoconiosis over a continuous period of not less than two
years during the ten years immediately preceding the date of his last exposure to such hazards. It
noted that the preponderance of the evidence indicates that Mr. Johnston was not exposed
continuously to minute particles of dust in abnormal quantities during his employment with
CRW West Virginia. It noted that he acknowledged that he wore a tight fitting OSHA approved
dust respirator. Further, a report by James McIntosh, an industrial hygienist, also found that Mr.
Johnston was not exposed to hazardous levels of airborne dust during his employment. The
Office of Judges further noted that while this was the non-medical stage of compensability, the
medical records establish that despite Mr. Johnston’s testimony otherwise, he has a history of
breathing problems predating his employment with CRW West Virginia. Thus, the Office of
Judges held that Mr. Johnston failed to meet the requirement of West Virginia Code § 23-4-1,
and the application for workers’ compensation benefits was properly denied. The Board of
Review reached the same reasoned conclusions in its decision of November 30, 2011. We agree
with the reasoning and conclusions of the Board of Review.

        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 12, 2013

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

DISSENTING:
Chief Justice Brent D. Benjamin




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