                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BLAINE A. KELLEY,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No.13-0289 (BOR Appeal No. 2047974)
                   (Claim No. 2008045656)


NEWTOWN ENERGY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Blaine A. Kelley, appearing pro se, appeals the decision of the West Virginia
Workers’ Compensation Board of Review. Newtown Energy, Inc., by H. Toney Stroud, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 6, 2013, in
which the Board affirmed a December 18, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 7, 2009,
decision denying the diagnosis of occupational pneumoconiosis as a compensable component
and granted no 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.

        Mr. Kelley worked as a coal miner for Newtown Energy, Inc. He stopped working in
2007 due to colon cancer. Mr. Kelley completed a workers’ compensation application requesting
that occupational pneumoconiosis be held compensable and that he be granted a permanent
partial disability award. He submitted two PET scan reports from Raleigh General Hospital that
stated he had occupational pneumoconiosis. Jack L. Kinder, M.D., Chairman of the Occupational
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Pneumoconiosis Board, testified that the Board evaluated Mr. Kelley and took a chest x-ray that
was negative for occupational pneumoconiosis. He opined there was no basis to make an
occupational pneumoconiosis diagnosis. The claims administrator denied the diagnosis of
occupational pneumoconiosis as a compensable component and granted no permanent partial
disability award based on the Occupational Pneumoconiosis Board’s findings.

        The Office of Judges affirmed the claims administrator’s decision. It held that the
Occupational Pneumoconiosis Board found that Mr. Kelley has no pulmonary impairment
attributable to occupational pneumoconiosis and that Mr. Kelley has not submitted sufficient
evidence to show that the Occupational Pneumoconiosis Board’s findings are clearly wrong. The
Board of Review affirmed the Order of the Office of Judges. On appeal, Mr. Kelley disagrees
and asserts that after his surgery, the physician informed him that he was remaining on oxygen
longer than normal because he was not getting enough oxygen due to his occupational
pneumoconiosis. He further asserts that the x-ray report clearly showed the presence of
occupational pneumoconiosis and that Dr. Kinder gave false testimony by saying the x-ray was
negative for occupational pneumoconiosis. Newtown Energy, Inc., maintains that Mr. Kelley is
not entitled to any permanent partial disability award because the Occupational Pneumoconiosis
Board found there was no evidence of occupational pneumoconiosis based on its x-rays that were
negative for occupational pneumoconiosis.

        The Board of Review was correct to affirm the Office of Judges’ denial of occupational
pneumoconiosis as a compensable component and deny a permanent partial disability award for
occupational pneumoconiosis. The Office of Judges relied on the Occupational Pneumoconiosis
Board’s findings. The Occupational Pneumoconiosis Board noted that Mr. Kelley stopped
working in 2007 due to colon cancer. It examined Mr. Kelley on May 26, 2009, reviewed his
pulmonary function studies, and took an x-ray of his chest. The Occupational Pneumoconiosis
Board found that Mr. Kelley had been exposed to dust hazards approximately thirty-five years
but had normal pulmonary function studies and normal x-rays as far as pneumoconiosis. The
Occupational Pneumoconiosis Board took an x-ray of Mr. Kelley’s chest approximately two
years after he had ceased working in 2007 and did not find pneumoconiosis on the x-ray.
Therefore, it concluded that there was no basis to make a recommendation of impairment, and
the Office of Judges agreed. The Office of Judges noted that Mr. Kelley submitted some
evidence of a diagnosis of simple pneumoconiosis but that the evidence was insufficient to
establish the Occupational Pneumoconiosis Board’s findings were clearly wrong. This Court
affirms the Board of Review and holds that the evidence is insufficient to prove Mr. Kelley has
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.
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ISSUED: September 18, 2014

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




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