                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 3, 2015

                                                                            RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

ARCELORMITTAL USA XMB PRINCETON DIVISION,                                     OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 14-0309	 (BOR Appeal No. 2048776)
                    (Claim No. 2011010393)


JOEY W. ELLIS,

Claimant Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Arcelormittal USA XMB Princeton Division, by Mark J. Grigoraci, its
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.

       This appeal arises from the Board of Review’s Final Order dated February 25, 2014, in
which the Board affirmed an August 29, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 15, 2012,
decision granting Mr. Ellis a 10% permanent partial disability award for occupational
pneumoconiosis. Arcelormittal USA XMB Princeton Division is appealing the Board of
Review’s Order that authorized a 10% permanent partial disability award 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. Ellis worked for Arcelormittal USA XMB Princeton Division as an underground
miner for approximately six months and as a service miner, dozer operator, rock truck driver and
end loader for approximately thirty and a half years. Mr. Ellis alleges he has occupational
pneumoconiosis due to the dust hazards that he was exposed to as a miner. The Occupational
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Pneumoconiosis Board found there was sufficient evidence to justify a diagnosis of occupational
pneumoconiosis with 10% pulmonary function impairment attributable to this disease. The
claims administrator granted Mr. Ellis a 10% permanent partial disability award for occupational
pneumoconiosis.

        The Office of Judges affirmed the claims administrator’s decision and found that Mr.
Ellis has a 10% functional impairment attributable to occupational pneumoconiosis. The Board
of Review affirmed the Order of the Office of Judges. On appeal, Arcelormittal USA XMB
Princeton Division disagrees and asserts that the 10% permanent partial disability award should
be reversed because the Occupational Pneumoconiosis Board’s findings are clearly wrong due to
its findings being based upon an inaccurate smoking history. Mr. Ellis did not file a response
brief.

        Under West Virginia Code § 23-4-6a (2005), the Office of Judges must affirm the
determination of the Occupational Pneumoconiosis Board unless the Board’s decision is clearly
wrong in view of the reliable, probative, and substantial evidence on the whole record. The
Occupational Pneumoconiosis Board found Mr. Ellis had an overall 40% functional impairment
with 10% of the total attributable to occupational pneumoconiosis and the remainder attributable
to cigarette smoking. The Occupational Pneumoconiosis Board noted that Mr. Ellis had a thirty-
one year history of dust exposure. The Office of Judges noted that Arcelormittal USA XMB
Princeton Division argued that the Occupational Pneumoconiosis Board had an inaccurate
history of Mr. Ellis’s cigarette smoking in that he had over a seventy pack-year history of
smoking instead of the thirty-five years given to the Occupational Pneumoconiosis Board. The
Office of Judges found Arcelormittal USA XMB Princeton Division has the burden of
demonstrating that the Occupational Pneumoconiosis Board’s decision is clearly wrong and that
Arcelormittal USA XMB Princeton Division has not met this burden. The Office of Judges
concluded the Occupational Pneumoconiosis Board’s findings and conclusions are persuasive
and have not been demonstrated to be clearly wrong. Therefore, the Office of Judges held that
Mr. Ellis has a 10% functional impairment attributable to occupational pneumoconiosis. The
Board of Review affirmed the Order of the Office of Judges.

        This Court agrees with the findings of the Office of Judges and the conclusions of the
Board of Review. The Occupational Pneumoconiosis Board found Mr. Ellis has 10% impairment
due to occupational pneumoconiosis. Arcelormittal USA XMB Princeton Division has failed to
meet its burden of proving the Occupational Pneumoconiosis Board was clearly wrong.

        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: February 3, 2015

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

DISSENTING:
Justice Menis E. Ketchum




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