                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               March 4, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GARY R. LEGG,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0510 (BOR Appeal No. 2048892)
                   (Claim No. 2011040576)

WEST VIRGINIA MINE POWER, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Gary R. Legg, by Patrick K. Maroney, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. West Virginia Mine Power, Inc., by
Matthew L. Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 29, 2014, in
which the Board affirmed an October 1, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 7, 2011,
decision granting Mr. Legg a 2.56% permanent partial disability award related to his
occupational noise induced hearing loss. 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. Legg worked as a coal miner for over thirty-eight years, which included some time as
an employee of West Virginia Mine Power, Inc., but on March 17, 2009, he retired. Over two
years later, Holly Lantz, Au.D., CCC-A, performed audiometric testing on him and determined
that he had a right ear four frequency air conduction total of 190 decibels and a left ear air
conduction total of 175 decibels. Mr. Legg filed an application for workers’ compensation
benefits for occupational noise induced hearing loss based on these results. Following his
application, Christopher White, D.O., evaluated Mr. Legg and determined that he had significant
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exposure to occupational noise during his work around coal mining equipment. Dr. White found
that the results of Ms. Lantz’s four frequency air conduction testing equated to 14.85% whole
person impairment for hearing loss. Robert Walker, CCC-A, then conducted a second round of
audiometric testing which showed that Mr. Legg had a right ear four frequency bone conduction
total of 115 decibels and a left ear bone conduction total of 155 decibels. P. C. Corro, M.D.,
evaluated Mr. Legg based on this audiogram and found that he had 2.56% whole person
impairment. He also found that no impairment rating should be given for speech discrimination
because the test results were within normal limits. On October 7, 2011, the claims administrator
granted Mr. Legg a 2.56% permanent partial disability award based on Dr. Corro’s
recommendation. Considering the discrepancy between Dr. White’s and Dr. Corro’s impairment
recommendations, a third evaluation was authorized with David A. Phillips, M.D. Based on
audiometric testing conducted by Catherine Monk, CCC-A, Dr. Phillips found that Mr. Legg had
a right ear four frequency bone conduction total of 205 decibels and a left ear bone conduction
total of 175 decibels. Dr. Phillips found that there was a conductive pattern to Mr. Legg’s
hearing loss and therefore, utilized only the bone conduction totals. He also adjusted the left ear
bone conduction total to 125 decibels to account for the likelihood that non-occupational factors
contributed to Mr. Legg’s hearing loss. Dr. Phillips also noted that Mr. Legg had reduced speech
discrimination. He found 1% impairment for speech discrimination and 3.3% impairment for the
four frequency bone conduction totals which combined for a 4.3% whole person impairment
rating for hearing loss. On October 1, 2013, the Office of Judges affirmed the claims
administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on
April 29, 2014, leading Mr. Legg to appeal.

        The Office of Judges concluded that the evidence in the record demonstrated that Mr.
Legg had 2.56% whole person impairment related to occupational hearing loss and was,
therefore, entitled to a 2.56% permanent partial disability award. The Office of Judges based this
determination on the evaluation of Dr. Corro. The Office of Judges found that he properly relied
on the bone conduction totals within Mr. Walker’s audiometric testing. The Office of Judges
considered the recommendation of Dr. Phillips, but it found that Dr. Corro’s opinion was more
reliable than Dr. Phillips’s because Dr. Phillips’s narrative and impairment calculation involved
considerable speculation regarding the non-occupational factors affecting Mr. Legg’s hearing
loss. The Office of Judges also considered the recommendation of Dr. White. It found, however,
that his evaluation was not consistent with West Virginia Code of State Rules § 85-20-47.6
(2006) because he calculated Mr. Legg’s impairment from the four frequency air conduction
totals. The Office of Judges determined that Dr. Corro’s impairment recommendation based on
bone conduction totals was a more accurate reflection of Mr. Legg’s impairment because it did
not compensate Mr. Legg for conductive loss. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Legg has not demonstrated that he is entitled to any greater than a 2.56% permanent
partial disability award for his occupational hearing loss. The evaluation of Dr. Corro was based
on credible audiometric test results, and his evaluation was consistent with the preference in
West Virginia Code of State Rules § 85-20-47.6 for an impairment rating based on bone
conduction testing. The Office of Judges was within its discretion in relying on Dr. Corro’s
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opinion. The Office of Judges also provided sufficient and justified reasons for not relying on the
recommendations of Dr. Phillips or Dr. White. The Office of Judges did not commit any
reversible error in disregarding their opinions.

        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: March 4, 2015

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




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