                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
CHARLES L. JARRELL,                                                             October 4, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0056	 (BOR Appeal No. 2046208)
                    (Claim No. 2009062317)

EASTERN ASSOCIATED COAL CORPORATION, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Charles L. Jarrell, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Eastern Associated Coal
Corporation, LLC, by Ann B. Rembrandt, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 23, 2011, in
which the Board affirmed a July 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 11, 2009,
decision granting Mr. Jarrell 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. Jarrell allegedly suffered exposure to the hazards of occupational pneumoconiosis
while working as an electrician and coal miner for Eastern Associated Coal Corporation, LLC.
On December 16, 2008, Dr. Kinder, from the Occupational Pneumoconiosis Board, concluded
there was sufficient evidence to justify a diagnosis of occupational pneumoconiosis with 10%
pulmonary function impairment attributable to this disease. On March 30, 2009, Dr. Rasmussen
determined that Mr. Jarrell suffered a 30% permanent partial disability due to his occupational
dust exposure. On April 6, 2009, Dr. Gaziano concluded that Mr. Jarrell had approximately 25%
pulmonary functional impairment related to his occupational pneumoconiosis. On October 26,
2010, Dr. Castle opined that Mr. Jarrell had no form of occupational pneumoconiosis. On
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October 28, 2010, Dr. Fino concluded that Mr. Jarrell could not have more than 10%
abnormality or impairment due to occupational pneumoconiosis.

       The Office of Judges affirmed the claims administrator’s decision, and held that the
Occupational Pneumoconiosis Board was correct in finding that Mr. Jarrell had a 10%
pulmonary function impairment due to occupational pneumoconiosis. On appeal, Mr. Jarrell
disagrees and asserts that Dr. Rasmussen and Dr. Gaziano both found that he had more than 10%
pulmonary functional impairment attributable to occupational pneumoconiosis, and that the
Occupational Pneumoconiosis Board’s apportionment of all impairment beyond 19% to non-
occupational asthma was erroneous.

        The Occupational Pneumoconiosis Board evaluated Mr. Jarrell four times over a period
of twenty years, and administered ventilator studies in 2003 and 2008 with before and after
bronchodilator. The results showed reversibility of impairment after bronchodilator which is
consistent with bronchospastic disease, and the Occupational Pneumoconiosis Board’s testimony
noted that impairment due to occupational pneumoconiosis is generally permanent and
irreversible. The Occupational Pneumoconiosis Board discredited Dr. Gaziano’s
recommendation because he treated asthma as if it was easy to resolve, and the Occupational
Pneumoconiosis Board testified that with recurring bouts of bronchospastic disease, one’s ability
to respond to bronchodilators and to revert to normal decreases, and then you have permanent
impairment due to asthma. The Occupational Pneumoconiosis Board discredited Dr.
Rasmussen’s recommendation in which he found there was no clear cut evidence of asthma as
not being persuasive because Mr. Jarrell has a known history of asthma. The Occupational
Pneumoconiosis Board relied on Dr. Castle and Dr. Fino’s recommendations in that neither
indicated that Mr. Jarrell had more than 10% pulmonary function impairment due to
occupational pneumoconiosis. The Office of Judges relied on the Occupational Pneumoconiosis
Board’s recommendation of 10% permanent partial disability award. The Board of Review
reached the same reasoned conclusions in its decision of December 23, 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: October 4, 2013

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