                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  August 23, 2016
STANLEY STEWART,                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


vs.)   No. 15-0824 (BOR Appeal No. 2050222)
                   (Claim No. 2012004356)

PERFORMANCE COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Stanley Stewart, by Linda Garrett, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Performance Coal Company, by Sean
Harter, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated July 23, 2015, in which
the Board affirmed a January 13, 2015, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s May 12, 2014, decision
denying a reopening of the claim for consideration of 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. Stewart, a coal miner, developed occupational pneumoconiosis in the course of his
employment for Performance Coal Company. The Occupational Pneumoconiosis Board
determined on January 31, 2012, that he had thirty-four years of continuous exposure to the
hazards of occupational pneumoconiosis. He had shortness of breath for ten to fifteen years and a
chronic cough for ten to twelve. Examination showed Mr. Stewart was in good clinical condition
and was not in any respiratory distress. The Occupational Pneumoconiosis Board found 0%
whole person impairment. Based on its determination, the claims administrator granted a 0%
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permanent partial disability award on March 19, 2012. The Office of Judges affirmed the
decision on March 14, 2014, and its Order was not appealed.

        On February 9, 2013, George Zaldivar, M.D., performed an independent medical
evaluation in which he opined that Mr. Stewart had developed asthma since his original
evaluation by the Occupational Pneumoconiosis Board in 2004. This was seen by his fully
reversible airway obstruction during testing. Dr. Zaldivar found no evidence to justify a
diagnosis of clinical occupational pneumoconiosis. He said that Mr. Stewart has radiographic
evidence of occupational pneumoconiosis but there is no clinical evidence he has any
impairment at all as a result. Dr. Zaldivar noted that he did not complete his testing that day
because Mr. Stewart reported shortness of breath; however, Dr. Zaldivar stated that he had
normal blood gases and had no physiological reason to stop the testing. Dr. Zaldivar found no
pulmonary impairment.

       An evaluation by Donald Rasmussen, M.D., on July 8, 2013, indicates ventilatory
function studies were normal without significant change following bronchodilator therapy. Total
lung capacity, residual volume, single breath carbon monoxide diffusing capacity, and resting
blood gases were all also normal. An incremental treadmill study was moderately impaired. Dr.
Rasmussen found that Mr. Stewart had clinical occupational pneumoconiosis which was the
primary cause of his moderate impairment in respiratory function.

        The Occupational Pneumoconiosis Board testified in a hearing before the Office of
Judges on January 8, 2014. John Willis, M.D., testified on behalf of the Board that Mr. Stewart’s
films were negative for occupational pneumoconiosis until 2004. The 2012 film has nodular
fibrosis consistent with simple occupational pneumoconiosis and there were similar findings in
2013. He agreed that there may be some coalescence on the 2012 and 2013 studies but he found
no nodules. He concluded that there was not sufficient evidence to diagnose complicated
occupational pneumoconiosis. Jack Kinder, M.D., testified on behalf of the Board that studies by
Dr. Rasmussen and Dr. Zaldivar appear to be valid. Dr. Rasmussen’s study would indicate 15%
impairment while Dr. Zaldivar’s shows none. Dr. Kinder noted that there was quite a change
between pre and post-bronchodilator medication. Post-bronchodilator tests were within normal
limits. He agreed that if occupational pneumoconiosis were causing the impairment, one would
expect the post-bronchodilator testing to still show impairment. He therefore concluded that Mr.
Stewart had no permanent impairment as a result of occupational pneumoconiosis. Bradley
Henry, M.D., also of the Occupational Pneumoconiosis Board, concurred.

       On March 9, 2014, Mr. Stewart underwent an independent medical evaluation by Robert
Cohen, M.D. Dr. Cohen noted that Mr. Stewart began smoking when he was twenty years old.
He smoked one half to three fourths of a pack a day until he quit thirteen years later in 1990. He
was a coal miner for thirty-five years. Dr. Cohen opined that Mr. Stewart suffers from
occupational pneumoconiosis. His opinion was based on the occupational history as well as
pulmonary function testing which showed mild to moderate, reversible obstructive defect. Also,
Mr. Stewart has exhibited consistent symptoms of a chronic lung disease for fifteen years and
cardiopulmonary exercise testing was markedly abnormal with significant hypoxemia. Finally,
imaging studies were positive for occupational pneumoconiosis. Dr. Cohen therefore concluded
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that Mr. Stewart’s work and smoking history were significantly contributory to his pulmonary
dysfunction, specifically his gas exchange abnormalities with exercise. Dr. Cohen stated that Mr.
Stewart’s resulting respiratory impairment was disabling for his last job as a continuous miner
operator. Additional testing from the Occupational Lung Center on September 3, 2014, showed
normal pulmonary function.

        The claims administrator denied a reopening of the claim for an additional permanent
partial disability award on May 12, 2014. The Office of Judges affirmed the decision in its
January 13, 2015, Order. It stated that under West Virginia Code § 23-5-2 (2005) and West
Virginia Code § 23-5-3 (2009), a claimant must show an aggravation or progression of the
compensable condition or some other fact or facts not previously considered in order for a claim
to be reopened for additional permanent partial disability. The Office of Judges determined that
Mr. Stewart failed to meet this burden of proof. The Office of Judges found that Dr.
Rasmussen’s studies were previously considered by the Office of Judges in its March 14, 2014,
Order granting no permanent partial disability award for occupational pneumoconiosis. The
Order was not appealed. The Office of Judges further determined that Dr. Cohen offered no
opinion as to a progression or aggravation of impairment or as to any degree of impairment due
to occupational pneumoconiosis. Lastly, the Office of Judges found that the most recent studies,
dated September 3, 2014, from the Occupational Lung Center, were within normal limits. The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on July 23, 2015.

       After review, we agree with the consistent decisions of the Office of Judges and Board of
Review. Mr. Stewart has failed to show that he has suffered a progression or aggravation of his
occupational pneumoconiosis. In fact, he has not persuasively shown that he suffers any
impairment from occupational pneumoconiosis. Though radiological findings show that he has
occupational pneumoconiosis, the Occupational Pneumoconiosis Board persuasively testified
before the Office of Judges that he suffers from simple occupational pneumoconiosis only and
has no permanent impairment as a result. Further, the report of Dr. Cohen, which Mr. Stewart
relies on for reopening, does not contain a finding of a progression or aggravation of
occupational pneumoconiosis, nor does it contain an impairment rating.

        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: August 23, 2016

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

Justice Brent D. Benjamin, disqualified




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