                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

ROCKSPRING DEVELOPMENT, INC,
                                                                                       FILED
Employer Below, Petitioner                                                          November 1, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.)   No. 18-0669 (BOR Appeal No. 2052490)                                         OF WEST VIRGINIA
                   (Claim No. 2016017899)

DENNIS JEWELL,
Claimant Below, Respondent


                               MEMORANDUM DECISION
       Petitioner Rockspring Development, Inc., by Sean Harter, its attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Dennis Jewell, by Anne L.
Wandling, his attorney, filed a timely response.

        The issue on appeal is the amount of permanent partial disability Mr. Jewell has as a result
of occupational pneumoconiosis. The claims administrator granted a 10% award on December 7,
2016. The Office of Judges affirmed the decision in its January 9, 2018, Order. The Order was
affirmed by the Board of Review on June 29, 2018. 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. Jewell, a coal miner, developed occupational pneumoconiosis as a result of thirty-eight
years of exposure in the coal mines. A December 7, 2014, treatment note from Three Rivers
Medical Center indicates Mr. Jewell presented with severe anemia, but his lungs were clear. He
was diagnosed with stable chronic obstructive lung disease and anemia.

       Mr. Jewell was examined by the Occupational Pneumoconiosis Board and its findings were
released on October 6, 2016. It found that Mr. Jewell had 10% impairment as a result of
occupational pneumoconiosis. It noted an exposure history of thirty-eight years. Mr. Jewell
stopped working in December of 2014 due to anemia and breathing difficulties. He reported
shortness of breath for the past twenty years, sputum, and occasional wheezing. The Board noted
that Mr. Jewell was diagnosed with asthma in 2005 and was treated for pleurisy in the 1990s. He
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was diagnosed with chronic obstructive pulmonary disease in 2005. On examination, he had mild
wheezing in both lung fields. Chest x-rays showed a hiatal hernia. There was scarring at the lung
bases. However, the Board found insufficient evidence of pleural or parenchyma abnormalities to
establish a diagnosis of occupational pneumoconiosis. It was noted that Mr. Jewell had a smoking
history of one pack per day for thirty years but had ceased smoking twelve years prior. It was also
noted that his diffusion studies showed an FVC of 3.95 or 81% of predicted. Mr. Jewell’s FEV1
was 2.72 or 75% of predicted. His DLVA was 3.95 or 76% of predicted and his
carboxyhemoglobin was 1.5.

       An October 20, 2016, treatment note by Melinda Elkins-Smith, M.D., indicates Mr. Jewell
was seen for chronic obstructive lung disease and asthma. She assessed emphysema and
obstructive sleep apnea. Mr. Jewell’s chronic obstructive lung disease was stable and his breathing
had improved since he was started on a CPAP.

       A chest CT scan was performed on November 23, 2016, and showed changes of chronic
obstructive pulmonary disease and emphysema. There was probable scarring in the lung bases and
a four millimeter pulmonary nodule. The impression was chronic changes and unchanged
mediastinal adenopathy. Diffusion studies were performed at the Occupational Lung Center on
March 20, 2017. They indicate an FVC of 4.04 or 83% of predicted. Mr. Jewell’s FEV1 was 2.74
or 76% of predicted. His DLVA was 3.86 or 75% of predicted and his carboxyhemoglobin was
1.5.

        A hearing was conducted on December 6, 2017, in which members of the Occupational
Pneumoconiosis Board testified regarding Mr. Jewell. Jack Willis, M.D., the Occupational
Pneumoconiosis Board’s radiologist, stated that there had been no x-ray diagnosis of occupational
pneumoconiosis in this case. He reviewed a CT scan which showed mild emphysema and stated
that he saw no evidence of occupational pneumoconiosis or pleural plaques, which indicate the
presence of the disease. He opined that there was no radiographic evidence of occupational
pneumoconiosis. Jack Kinder, M.D., also testified on behalf of the Occupational Pneumoconiosis
Board. He opined that Mr. Jewell’s diffusion studies show 10-15% impairment. It was his opinion
that Mr. Jewell had sustained 10% impairment as a result of occupational pneumoconiosis. Dr.
Kinder noted that chronic obstructive pulmonary disease, which may include diseases such as
emphysema, anemia, and obstructive sleep apnea, are all known causes of breathing impairment.
Dr. Kinder opined that Mr. Jewell has an overall breathing impairment of 15%. He noted that Mr.
Jewell worked in the coal mine for thirty-eight years and stated that, based upon the presumptive
statue1, he would recommend 10% impairment attributable to occupational pneumoconiosis. Dr.

1
    West Virginia Code § 23-4-8c(b) (2018) provides that

          If it can be shown that the claimant or deceased employee has been exposed to the
          hazard of inhaling minute particles of dust in the course of and resulting from his
          or her employment for a period of ten years during the fifteen years immediately
          preceding the date of his or her last exposure to such hazard and that the claimant
          or deceased employee has sustained a chronic respiratory disability, it shall be
          presumed that the claimant is suffering or the deceased employee was suffering at
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Kinder opined that this was a very close case given Mr. Jewell’s other breathing issues, but his
recommendation remained 10% impairment. Mallinath Kayi, M.D., also of the Occupational
Pneumoconiosis Board, concurred with Dr. Kinder.

       The claims administrator granted a 10% permanent partial disability award on December
7, 2016. The Office of Judges affirmed the decision in its January 9, 2018, Order. It found that the
Occupational Pneumoconiosis Board considered the case and opined that Mr. Jewell had 10%
impairment as a result of occupational pneumoconiosis. Dr. Kinder testified that he had 15%
impairment overall due to numerous breathing issues including emphysema, anemia, and sleep
apnea. Dr. Kinder found this to be a close case but remained of the opinion that Mr. Jewell had
10% impairment due to occupational pneumoconiosis. The Office of Judges concluded that the
Occupational Pneumoconiosis Board’s findings were not clearly wrong and affirmed the 10%
permanent partial disability award. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on June 29, 2018.

       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Pursuant to West Virginia Code §§ 23-4-6a and 23-4-8c, the
Occupational Pneumoconiosis Board makes the initial determination of the extent of the claimant’s
pulmonary disability. The Office of Judges may reverse the finding of the Board only when the
Board’s decision is clearly wrong. In this case, though Mr. Jewell has several pulmonary
conditions which can cause impairment, the Board’s finding of 10% impairment attributable to
occupational pneumoconiosis is not clearly wrong and was therefore properly affirmed. Though
there was no radiographic evidence of occupational pneumoconiosis, Dr. Kinder based his
assessment of 10% impairment on Mr. Jewell’s diffusion studies.

        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: November 1, 2019


CONCURRED IN BY:


       the time of his or her death from occupational pneumoconiosis which arose out of
       and in the course of his or her employment. This presumption is not conclusive.

The employer argues that Dr. Kinder made his finding of 10% impairment due to occupational
pneumoconiosis based only on the presumption. We find the argument to be unpersuasive. Dr.
Kinder’s opinion was based largely on diffusion studies.
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Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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