                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

CHARLES MORRIS,                                                                     FILED
                                                                                 February 3, 2017
Claimant Below, Petitioner                                                    RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)   No. 16-0108 (BOR Appeal No. 2050678)
                   (Claim No. 2013029974)


FAYETTE COUNTY BOARD OF EDUCATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Charles Morris, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Fayette County Board of Education, by
H. Toney Stroud, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 8, 2016, in
which the Board affirmed a July 20, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 11,
2013, decision granting no 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. Morris, a custodian and furnace operator for Fayette County Board of Education,
alleged that he developed occupational pneumoconiosis in the course of his employment. Mr.
Morris underwent spirometry testing at New River Health and a report was generated on January
29, 2013, which indicated Mr. Morris suffered from moderate obstructive ventilator
insufficiency. There was no significant increase post-bronchodilator. A February 14, 2013, x-ray
revealed simple pneumoconiosis, chronic obstructive pulmonary disease, and bullae.
                                                1
         A. Mizra, M.D., Mr. Morris’s treating physician, completed a report of occupational
pneumoconiosis on March 26, 2013, alleging that Mr. Morris developed occupational
pneumoconiosis in the course of and as a result of his employment. The date of last exposure was
listed as June 17, 2010. Another x-ray revealed a nodule in the lower left lung. A CT was
recommended. An April 17, 2013, CT of the chest demonstrated no evidence of pulmonary mass,
infiltrate, effusion, or adenopathy. There was evidence of previous granulomatous inflammation.
Fayette County Board of Education completed a report of occupational pneumoconiosis on April
30, 2013, indicating that Mr. Morris was exposed to a minimal amount of asbestos during his
employment.

        On May 8, 2013, the claims administrator held the claim compensable on a non-medical
basis. The case was referred to the Occupational Pneumoconiosis Board for evaluation. On July
18, 2013, the Occupational Pneumoconiosis Board issued its findings. The report provided that a
diagnosis of occupational pneumoconiosis could not be made. Physical examination showed Mr.
Morris to be in good general clinical condition. He was not in any respiratory distress at rest. The
chest cage was well formed. There were no rales; however, there was mild wheezing scattered
throughout both lung fields. Heart sounds were of good quality with no murmurs. X-ray views of
the chest were within normal limits in their appearance with no evidence of occupational
pneumoconiosis. Based upon the findings at the Occupational Pneumoconiosis Board, the claims
administrator granted no award for occupational pneumoconiosis.

        On March 5, 2014, members of the Occupational Pneumoconiosis Board testified at a
hearing in this matter. Johnsey Leef, M.D., testified that he saw no evidence of occupational
pneumoconiosis in their x-ray studies. Jack Kinder, M.D., testified that he reviewed the breathing
studies and they indicated that Mr. Morris suffered from 10% whole person impairment.
However, he attributed the 10% impairment to bronchospastic disease. Dr. Kinder also noted that
Mr. Morris had shortness of breath, a productive cough, and wheezing for twenty years. Further,
he noted that Mr. Morris was treated for pneumonia in 1979 and was diagnosed with emphysema
in the 1990s. As a result of his diagnosis, Mr. Morris had been using bronchodilator medication,
which was consistent with a bronchospastic disease. Mahendra Patel, M.D., agreed with the
opinions of Dr. Leef and Dr. Kinder. In a final hearing held on May 20, 2015, John Willis, M.D.,
of the Occupational Pneumoconiosis Board, testified that he concluded there was insufficient
parenchymal or pleural disease to make a diagnosis of occupational pneumoconiosis. Both Dr.
Kinder and Dr. Patel agreed with Dr. Willis’s interpretation.

        The Office of Judges determined that the Occupational Pneumoconiosis Board was not
clearly wrong based on the evidence in the record and, therefore, adopted its conclusion that Mr.
Morris did not have any impairment related to occupational pneumoconiosis. The Office of
Judges found that the physical examination performed by the Occupational Pneumoconiosis
Board showed Mr. Morris to be in good general clinical condition and x-rays were within normal
limits. The Occupational Pneumoconiosis Board found no substantial evidence of occupational
pneumoconiosis. The Occupational Pneumoconiosis Board found that Mr. Morris suffered from
10% whole person impairment related to bronchospastic disease. However, the Occupational
Pneumoconiosis Board found that it was not work-related. The Occupational Pneumoconiosis
                                                 2
Board noted that Mr. Morris was diagnosed with non-work-related emphysema in the 1990s that
required bronchodilator medication. The Office of Judges adopted the findings of the
Occupational Pneumoconiosis Board. The Board of Review adopted the findings of the Office of
Judges and affirmed its Order.

       After review, we agree with the consistent decisions of the Office of Judges and Board of
Review. The Occupational Pneumoconiosis Board found that Mr. Morris suffered from 10%
whole person impairment related to lung disease but determined that it was not work-related. The
evidence of record shows that Mr. Morris had pneumonia and emphysema. Because the evidence
supported the Occupational Pneumoconiosis Board’s findings, it was not in error for the Office
of Judges and Board of Review to adopt them.

        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, 2017


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




                                                3
