                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 2, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LARRY HODGE,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0850 (BOR Appeal No. 2048225)
                   (Claim No. 2005030768)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

J. W. MACHINE COMPANY,
Employer Below,



                             MEMORANDUM DECISION
      Petitioner Larry Hodge, by Robert M. Williams, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. West Virginia Office of the Insurance
Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated July 30, 2013, in which
the Board affirmed a February 26, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s August 10, 2011, decision
granting no additional permanent partial disability 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.
                                                1
        Mr. Hodge was an employee of J. W. Machine Company when he retired on August 11,
2003. During his twenty-eight year career in coal mining, Mr. Hodge was exposed to
occupational dust on an almost daily basis. Mr. Hodge filed an application for workers’
compensation benefits based upon his assertion that he suffered from occupational
pneumoconiosis. Mr. Hodge’s case was then referred to the Occupational Pneumoconiosis Board
which determined Mr. Hodge suffered 10% whole person impairment related to his occupational
pneumoconiosis on November 2, 2006. Based upon the recommendation of the Occupational
Pneumoconiosis Board, Mr. Hodge was found to have occupational pneumoconiosis and was
granted a 10% permanent partial disability award related to occupational pneumoconiosis on
January 3, 2007. Thereafter, Mr. Hodge filed an application to reopen his claim for an additional
permanent partial disability award asserting he was entitled to more than a 10% permanent
partial disability award. On August 10, 2011, the claims administrator determined that Mr.
Hodge was only entitled to a 10% permanent partial disability award.

        The Office of Judges agreed with the findings of the Occupational Pneumoconiosis Board
and found that Mr. Hodge had failed to provide sufficient credible medical evidence to show he
was entitled to more than a 10% permanent partial disability award. The Occupational
Pneumoconiosis Board conducted an examination of the record and a hearing. At the hearing,
Jack L. Kinder, M.D., stated that the studies from Donald L. Rasmussen, M.D., dated March 29,
2010, had slightly better volumes than those of the tests performed by the Occupational
Pneumoconiosis Board. Overall the testing revealed 60% whole person impairment. Dr. Kinder
noted that that the blood gas and exercise gas studies were normal. Dr. Kinder then opined that
the study performed on June 23, 2011, was almost identical to the Occupational Pneumoconiosis
Board’s previous study performed on November 2, 2006. Both tests showed the same breathing
impairment and the pulmonary function volumes were very similar. As a result, Dr. Kinder did
not recommended any increase in Mr. Hodge’s permanent partial disability award. Dr. Kinder
then noted Mr. Hodge’s twenty-five year history of cigar smoking, which he found was
significant. Dr. Kinder stated that any presumption above 10% whole person impairment had
been rebutted. The Office of Judges determined that the testimony of Dr. Kinder was persuasive.
Accordingly, the Office of Judges affirmed the Occupational Pneumoconiosis Board’s finding
that Mr. Hodge was not entitled to any more than a 10% permanent partial disability award
related to his occupational pneumoconiosis. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order.

        We agree with the findings of the Office of Judges and the conclusion of the Board of
Review. Pursuant to Fenton Art Glass Co. v. West Virginia Office of Insurance Commissioner,
222 W. Va. 420, 431, 664 S.E.2d 761, 772 (2008), the Occupational Pneumoconiosis Board “is
to be accorded considerable deference on medical matters related to the diagnosis and, if any,
impairment related to occupational pneumoconiosis.” Mr. Hodge has failed to establish that the
recommendation of the Occupational Pneumoconiosis Board is in any way incorrect or based
upon faulty information. Since the Occupational Pneumoconiosis Board recommended no more
than 10% permanent partial disability award related to occupational pneumoconiosis and no
other report opines otherwise, Mr. Hodge has failed to show that the Board of Review committed
any error.
                                               2
        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 2, 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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