STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

February 1, 2013
 

RORY L. PERRY II, CLERK
 

LYNDALL W. DUNN, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0578 (BOR Appeal No. 2044941) 

(Claim No. 2009078062) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

PINNACLE MINING CO., LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Lyndall W. Dunn, by Reginald D. Henry, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Pinnacle Mining Co., LLC, by H. 

Dill Battle, III, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 2, 2011, in 

which the Board affirmed an August 9, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s denial of a request 

for additional permanent partial disability benefits. The Court has carefully reviewed the records, 

written arguments, and appendices contained in the petition, and the case is mature for 

consideration. 

Having considered the petition and the relevant decision of the lower tribunal, the Court 

is of the opinion that the decisional process would not be significantly aided by oral argument. 

Upon consideration of the standard of review, the Court determines that there is no prejudicial 

error. This case does not present a new or significant question of law. For these reasons, a 

memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. 

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Mr. Dunn worked in coal mines for 41 years and received an award of 1% permanent 

partial disability in February of 2005 based on his injuries up to that point. He stopped working 

as a coal miner in November of 2005. In March of 2009, the claims administrator granted 

compensability for a second report of hearing loss. In April of 2009, Dr. P.C. Corro, conducted 

an independent medical examination of Mr. Dunn and found that his impairment due to 

occupational noise was less than his already-awarded 1%. While Mr. Dunn’s hearing loss 

suggested a 5.126% impairment, the pattern of hearing loss suggested that much of the 

impairment was not due to occupational noise. He adjusted his impairment rating to 0.7315%. In 

December of 2009, Dr. David Harris reported that Mr. Dunn had a 9.074% impairment, based on 

an April of 2009 audiogram. In May of 2010, Dr. R. Austin Wallace conducted an independent 

medical evaluation of Mr. Dunn, examining several audiograms from 2004 to 2010. Dr. Wallace 

found that the Mr. Dunn had been adequately compensated by his previous 1% award and that 

part of Mr. Dunn’s impairment was due to causes other than noise exposure in the work place, 

including a diagnosis of cochlear lymphatic drops. 

Occupational noise induced hearing loss typically starts in the high frequencies, with 

lesser impact on lower frequencies and typically affects both ears. West Virginia Code of State 

Rules § 85-20-47.8-47.9. When an injured worker has impacts that do not show greater hearing 

loss at the higher registers than lower, or if the hearing loss is asymmetric, the evaluating 

physician should consider all causes for hearing loss, including nonoccupational noise, trauma, 

or disease. Id. Drs. Corro and Wallace each found that part of Mr. Dunn’s hearing loss was 

attributable to causes other than occupational noise based upon his hearing loss on lower 

frequencies. 

Mr. Dunn argues on appeal that Dr. Corro erred when he adjusted the impairment rating 

due to hearing loss unrelated to the occupational claim. Under West Virginia Code of State Rules 

§ 85-20-47.8, “If the otologist/otolaryngologist determines that an injured worker’s hearing loss 

is not all noise induced hearing loss, he or she should estimate the true noise induced hearing loss 

thresholds and explain his or her calculations on the basis of medical and audiological findings.” 

Id. Mr. Dunn argues that Dr. Corro did not adequately explain his adjustment from 5.126% to 

0.7315%. He further argues that Dr. Wallace’s assessment should be disregarded as unreliable 

because it made a finding of cochlear lymphatic drops that was not made by Drs. Corro or 

Harris. The Office of Judges and Board of Review found that Dr. Wallace’s report was the most 

detailed and thorough and it is the most persuasive and convincing. 

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. 

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ISSUED: February 1, 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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