                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              October 7, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
VICKI KUHN,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0661 (BOR Appeal No. 2047846)
                   (Claim No. 2012004048)

PPG INDUSTRIES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Vicki Kuhn, by Jonathan C. Bowman, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. PPG Industries, Inc., by Gary W.
Nickerson and James W. Heslep, its attorneys, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 21, 2013, in which
the Board affirmed an October 29, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 13, 2011, decision
rejecting Ms. Kuhn’s application for workers’ compensation benefits. 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.

       Ms. Kuhn worked at a chemical plant for PPG Industries, Inc. During her employment,
Ms. Kuhn frequently sought treatment and diagnostic services relating to breathing problems.
This included diagnostic care at Ohio Valley Asthma and Allergy Institute, which determined
that she had significant allergies to all pollens as well as dog and cat dander. Following this
determination, Ms. Kuhn came under the care of Michael Blatt, M.D., who believed that her
occasional wheezing and chest tightness were related to asthma. Dr. Blatt also suggested that Ms.
Kuhn should not be exposed to chemical fumes, and because of his recommendation, Ms. Kuhn
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stopped working on December 23, 2010. Ms. Kuhn was then referred to Krisha Urval, M.D.,
who found that her wheezing was better controlled since she stopped working around chemicals.
Dr. Urval also determined that Ms. Kuhn’s allergy symptoms had gotten worse since she had
gotten a cat. Ms. Kuhn then applied for workers’ compensation benefits alleging that her
repetitive exposure to chemicals at work caused her asthma. Her application was signed by Dr.
Blatt, but he did not list any specific chemicals which could have caused her symptoms. Dr. Blatt
indicated that he was unsure which chemical was causing Ms. Kuhn’s shortness of breath, but he
believed there was some relationship between her work and her symptoms. On October 13, 2011,
the claims administrator rejected Ms. Kuhn’s application for workers’ compensation benefits.
Following this rejection, Ms. Kuhn came under the care of Richard Ryncarz, M.D., who found
that she had a history of asthma and chronic bronchitis. He also found that she had a history of
exposure to various chemicals. Dr. Ryncarz performed pulmonary function studies on Ms. Kuhn
and found that there was no evidence of obstructive or restrictive disease. Joseph J. Renn III,
M.D., then evaluated Ms. Kuhn and found that there was no evidence of bronchospastic airway
disease, including asthma. Dr. Renn based this finding on the pulmonary function studies in her
record which were essentially normal. Dr. Renn further determined that Ms. Kuhn’s symptoms
did not meet the criteria for asthma because she did not have airflow limitation that was
reversible with treatment. Dr. Renn found that in 1997 Ms. Kuhn had donated the lower lobe of
her left lung. Dr. Renn believed that her current breathing problems were related to this surgery
and her natural aging. On October 29, 2012, the Office of Judges affirmed the claims
administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on
May 21, 2013, leading Ms. Kuhn to appeal.

        The Office of Judges concluded that Ms. Kuhn had not developed asthma in the course of
and resulting from her employment. It found that the evidence in the record did not support the
diagnosis of asthma. In making this determination, the Office of Judges relied on the opinion of
Dr. Renn and pointed out that the pulmonary function studies in the record did not evidence
sufficient airflow limitation to diagnose Ms. Kuhn with asthma. The Office of Judges noted that
even Dr. Ryncarz did not find objective evidence of obstructive or restrictive lung disease. The
Office of Judges also pointed out that Dr. Ryncarz did not specifically diagnose Ms. Kuhn with
asthma but instead indicated that her symptoms were similar to those caused by asthma. 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. Ms. Kuhn has not demonstrated that she developed any disease in the course of and
resulting from her employment. The evidence in the record is not sufficient to show that her
breathing problems are anything more than an ordinary disease of life. The diagnosis of asthma
is not supported by the objective evidence in the record. The pulmonary function studies in the
record were within normal limits and did not demonstrate an obstructive or restrictive cause of
her symptoms. The record also does not establish a causal connection between her symptoms and
her work. Dr. Blatt suggested that there was some relationship between her occupation and her
breathing problems, but Dr. Blatt did not provide any medical support for this suggestion. He
was also unable to attribute her symptoms to any specific chemical that she would have been
exposed to at work. The connection between Ms. Kuhn’s symptoms and her occupation is too
tenuous to support her application for workers’ compensation benefits.
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        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 7, 2014

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




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