                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                               FILED
VIRGIL STEELE III,                                                         November 2, 2018
Claimant Below, Petitioner                                                   EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs.)   No. 18-0468 (BOR Appeal No. 2052450)
                   (Claim No. 2016027389)

ARCELORMITTAL USA,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Virgil Steele III, by Jerome J. McFadden, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Arcelormittal USA, by T. Jonathan
Cook, its attorney, filed a timely response.

        The issue on appeal is compensability. The claims administrator rejected the claim for
occupational asthma on May 5, 2016. The Office of Judges affirmed the decision in its
December 20, 2017, Order. The Order was affirmed by the Board of Review on April 23, 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. Steele, a surface miner, alleges that he developed occupational asthma as a result of
work place dust exposure. A November 21, 2013, treatment note from Giles Community
Hospital indicates a CT scan of the chest showed a leftward anterior mediastinal low density
mass indicative of a thymol cyst, duplication cyst/pericardial cyst, or bronchogenic cyst. There
was no pulmonary embolism. Mr. Steele had a history of pulmonary hypertension, chronic
obstructive pulmonary disease, asthma, shortness of breath, shortness of breath on exertion,
reactive airway disease, unspecified asthma, tobacco use, chronic obstructive asthma, and asthma
with acute exacerbation. Mr. Steele was treated by Stephen Miller, D.O., from 2013 to 2016. In
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that time, Dr. Miller diagnosed asthma, abnormal findings on radiological and other examination
of the lungs, cough, wheezing, pulmonary hypertension, and acute bronchitis.

        A January 12, 2015 treatment note from Tug River Valley Health Association, Inc.,
indicates Mr. Steele reported shortness of breath, wheezing, cough, and chest pain for over a
year. He reported exposure to coal and rock dust for three years underground and six years above
ground. Chest x-rays showed pneumoconiosis. A pulmonary function test showed reduced
FEV1/FVC. The impression indicated that there was insufficient data to draw a conclusion.

        In the November 6, 2015, employees’ and physicians’ report of injury, Mr. Steele alleged
an injury to his lungs as a result of workplace exposure while working in a coal pit, chopping
coal, working on a high wall miner, and working as a mechanic for heavy equipment. The date of
last exposure was listed as November 15, 2013. Vishnu Patel, M.D., completed the physician’s
section and listed the diagnosis as occupational asthma.

       Treatment notes from Giles Community Hospital on November 21, 2013, indicate Mr.
Steele sought treatment for shortness of breath and was diagnosed with shortness of breath,
unspecified asthma, and personal history of tobacco use. On March 3, 2016, he was treated by
Dr. Patel for difficulty breathing and asthma. He reported occasional labored breathing and
chronic cough. The impression was asthma, labored breathing, and chronic cough. Mr. Steele
was given medication, advised to avoid irritants, and given a handout about chronic obstructive
pulmonary disease.

        Mr. Steele underwent pulmonary function testing at the Lung Diseases and Sleep
Disorders Clinic on June 28, 2016. The results indicated an FVC of 74%, FEV1 of 70%,
FEV1/FVC of 106%, and MVV of 33% of predicted. DLVA was 186% of predicted and airway
resistance was 1.36. He returned to Dr. Patel that day and reported occasional difficulty
breathing. It was noted that he has a chronic cough. Dr. Patel diagnosed asthma, labored
breathing, and chronic cough. On October 4, 2016, Dr. Patel noted that a chest x-ray taken on
November 5, 2013, showed no acute pulmonary changes. Chest x-rays taken on October 31,
2013, showed pulmonary arterial hypertension and no acute pulmonary changes.

        Dr. Patel testified in a deposition on October 7, 2016, that he is board certified in
pulmonary disease, among others. He also completed a fellowship in pulmonary medicine,
including occupational pulmonary disease. He first treated Mr. Steele on November 4, 2013, for
pulmonary hypertension and shortness of breath. Dr. Patel found that Mr. Steele’s symptoms
were highly consistent with airway obstruction and asthma. Mr. Steele had a history of smoking
but Dr. Patel found it was not significant. He had twelve years of coal exposure, and Dr. Patel
found that the exposure was either causing or worsening the respiratory condition. Mr. Steele
was placed on medication for the condition. Dr. Patel testified that he completed the physician’s
section of the report of injury. He noted that Mr. Steele’s pulmonary function studies showed
moderate chronic obstructive pulmonary disease or moderate airway obstruction, which is
believed to result from the underlying asthma. Chest x-rays showed hyperinflation, which is
consistent with chronic obstructive pulmonary disease. Dr. Patel opined that Mr. Steele
developed occupational asthma as a result of his work and years of exposure to dust.
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         On cross examination, Dr. Patel testified that not all of Mr. Steele’s x-rays show
hyperinflation, which could have been a temporary finding since asthma is an episodic disease.
The pulmonary function study performed on June 28, 2016, was of only fair quality and showed
restrictive lung disease. It also showed an SEC1 SDC ratio of 106, which is not consistent with
asthma. The FDS was 80%, which is not consistent with an obstructive airway disease. The test
on June 28, 2016, was pre-bronchodilator and in order to assess for asthma, a bronchodilator
medication must be used. Dr. Patel admitted that the June 28, 2016, study is not consistent with
airway obstruction. He stated that additional testing needs to be conducted to definitively
confirm a diagnosis of occupational asthma and should include both pre and post-bronchodilator
studies and a methacholine challenge.

       Pulmonary function testing was performed at the Occupational Lung Center on January
13, 2017. The results indicated an FVC of 92% of predicted pre-bronchodilator and 93% post
bronchodilator. The FEV1 was 87% pre-bronchodilator and 91% post-bronchodilator.
FEV1/FVC was 76 pre-bronchodilator and 78 post-bronchodilator. The FEF was 66% pre-
bronchodilator and 69% post-bronchodilator. The FEF Max showed an 11% change between
bronchodilator medication and the expiratory time was 8.79 pre-bronchodilator and 8.23 post-
bronchodilator.

        Marsha Bailey, M.D., performed an independent medical evaluation on January 17, 2017,
in which she opined that Mr. Steele has a chronic cough and shortness of breath; however, he
does not have asthma or occupational asthma. Dr. Bailey found no medical evidence to support a
diagnosis of occupational asthma since none of the pulmonary studies documented any findings
to support a diagnosis of reactive airway disease or asthma. Dr. Bailey stated that the pulmonary
function testing performed on January 13, 2017, showed completely normal FVC, FEV1, and
FEV1/FVC and Mr. Steele had no significant response post-bronchodilator. Dr. Bailey found
several risk factors to support non-occupational causes of Mr. Steele’s lung disease including
gastroesophageal reflux disease, atopy, a history of smoking, and Crohn’s disease. Dr. Bailey
stated that research shows a strong correlation between inflammatory bowel diseases, which
includes Crohn’s, and pulmonary complaints. Dr. Bailey found that Mr. Steele does not have
asthma and that his diagnoses of chronic cough and shortness of breath are likely a complication
of his Crohn’s disease.

       Dominic Gaziano, M.D., performed an independent medical evaluation on February 17,
2017, in which he performed a chest x-ray and found it to be normal. Spirometry was also
normal. Diffusing capacity for carbon monoxide was mildly reduced. Dr. Gaziano stated that he
was not provided with important medical records necessary to make a recommendation.
Specifically, he did not have hospital records or Dr. Patel’s treatment notes. In a supplemental
report dated May 31, 2017, Dr. Gaziano stated that he was provided with additional medical
records. He opined, based on his review of the evidence and an examination of Mr. Steele, that
Mr. Steele has asthmatic bronchitis with mild functional impairment.

       The claims administrator rejected the claim on May 5, 2016. The Office of Judges
affirmed the decision in its December 20, 2017, Order. It found that spirometry testing failed to
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confirm the diagnosis of asthma. Dr. Patel testified in his deposition that pre and post-
bronchodilator testing and a methacholine challenge needed to be conducted in order to confirm
a diagnosis of asthma. The Office of Judges found four pulmonary function tests of record, none
of which confirmed the diagnosis of asthma. The first test was on January 12, 2015, and was
found to have insufficient data to draw a conclusion. The second test, performed on June 28,
2016, contained no post-bronchodilator testing. Further, Dr. Patel found the test was only of fair
quality, the SEC1 SDC ratio was not consistent with asthma, and the FDS was not consistent
with airway obstruction. The Office of Judges next looked to the test performed on January 13,
2017, which consisted of pre and post-bronchodilator testing. The only physician of record to
interpret the results was Dr. Bailey, who found that the results showed no significant change. Dr.
Bailey determined that a diagnosis of asthma could not be made. The Office of Judges next
looked to Dr. Gaziano’s February 9, 2017, spirometry testing. The test only included pre-
bronchodilator testing; however, it was within normal limits and therefore, even if there was
improvement after a bronchodilator was administered, the results would not indicate a diagnosis
of asthma. Lastly, Dr. Bailey referenced two other pulmonary function tests, November 4, 2013,
and December 22, 2014, both of which were conducted in Dr. Patel’s office. Both tests showed a
decrease, instead of an increase, after post-bronchodilator medication. Also, Dr. Patel noted that
the December test showed chronic obstructive pulmonary disease with a component of restrictive
lung disease, which asthma is not. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on April 23, 2018.

       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. There were multiple pulmonary function tests performed on
Mr. Steele over the course of approximately four years. None of the tests indicated a diagnosis of
asthma.

        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 2, 2018


CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.
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