                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 13, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DAVID HENRY,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0501	 (BOR Appeal No. 2046470)
                   (Claim No. 2010123252)

WHEELING HOSPITAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner David Henry, by M. Jane Glauser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Wheeling Hospital, Inc., by Lucinda L.
Fluharty, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 26, 2012, in
which the Board affirmed a September 12, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 31, 2010,
decision rejecting the claim. 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. Henry worked for Wheeling Hospital as a painter for almost two years. In the later
part of 2008, after he had stopped working, Mr. Henry began experiencing breathing problems.
Dr. Lenkey then found that, given Mr. Henry’s history of significant paint exposure, he could
have occupational-induced painter’s asthma. Based on Dr. Lenkey’s assessment, Mr. Henry filed
a claim for worker’s compensation benefits. On August 31, 2010, the claims administrator
rejected Mr. Henry’s application. Following the rejection, Dr. Fino performed an independent
medical evaluation of Mr. Henry and found no evidence of a respiratory condition related to his
work and no evidence of asthma regardless of etiology. On September 12, 2011, the Office of
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Judges affirmed the claims administrator’s decision. The Board of Review then affirmed the
Order of the Office of Judges on March 26, 2012, leading Mr. Henry to appeal.

        The Office of Judges concluded that Mr. Henry failed to show that he suffered from an
occupational disease. The Office of Judges considered the assessment of Dr. Lenkey, but found
that he did not make a definitive diagnosis of occupational asthma. The Office of Judges also
found that the pulmonary function studies relied on by Dr. Lenkey were not valid. The Office of
Judges also found that Mr. Henry did not show that asthma could be seen to have followed as a
natural incident of paint exposure at work. The Office of Judges found that no physician or
industrial hygienist had found that Mr. Henry’s work with Wheeling Hospital had resulted in an
occupational disease. Finally the Office of Judges found that there was no evidence that Mr.
Henry’s work for Wheeling Hospital was the proximate cause of any occupational disease. The
Office of Judges found that there was no evidence which linked any condition to Mr. Henry’s
employment. The Office of Judges was also persuaded by the fact that Mr. Henry’s alleged
breathing problems started after he had ceased working at Wheeling Hospital and had not
improved since then. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order. The Board of Review also denied Mr. Henry’s motion to remand the case to
add an additional chargeable employer.

       We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Henry has not demonstrated that he received an occupational disease in the course of
and resulting from his employment. The assessment of Dr. Lenkey did not provide a definitive
diagnosis of asthma and he did not submit any other medical evidence demonstrating that he has
developed a lung condition. Mr. Henry has also not demonstrated that any such condition is
occupationally related. He has not shown that he contracted an occupational disease as a natural
incident of his work as a painter or his exposure to paint fumes. Additionally, Mr. Henry has not
submitted any evidence demonstrating that his work at Wheeling Hospital was the proximate
cause of any lung condition. The Board of Review was within its discretion to deny Mr. Henry’s
motion to remand the case to the Office of Judges for the purpose of adding an additional
chargeable employer to the claim.

        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: December 13, 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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