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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

RODGER L. BURGESS,

Claimant Below, Petitioner

vs.) No. 21-0460 (BOR Appeal No. 2056232)

(Claim No. 2013015480)

 

AMERICAN ELECTRIC POWER COMPANY, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Rodger L. Burgess, by Counsel William C. Gallagher, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review (“Board of Review”). American 

Electric Power Company, Inc., by Counsel James W. Heslep, filed a timely response.

The issue on appeal is permanent partial disability. On February 5, 2019, the claims 

administrator determined that Mr. Burgess was fully compensated by a prior 10% permanent 

partial disability award. The Workers’ Compensation Office of Judges (“Office of Judges”)

affirmed the decision in its January 4, 2021, Order. The Order was affirmed by the Board of 

Review on May 6, 2021.

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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. 

The standard of review applicable to this Court’s consideration of workers’ compensation 

appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:

(c) In reviewing a decision of the Board of Review, the Supreme Court of 

Appeals shall consider the record provided by the board and give deference to the 

board’s findings, reasoning, and conclusions . . . .

FILED

September 19, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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(d) If the decision of the board represents an affirmation of a prior ruling by 

both the commission and the Office of Judges that was entered on the same issue 

in the same claim, the decision of the board may be reversed or modified by the 

Supreme Court of Appeals only if the decision is in clear violation of constitutional 

or statutory provision, is clearly the result of erroneous conclusions of law, or is 

based upon the board’s material misstatement or mischaracterization of particular 

components of the evidentiary record. The court may not conduct a de novo 

reweighing of the evidentiary record . . . . 

See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64 

(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 

230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions 

of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of 

Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011). 

Mr. Burgess was exposed to hazardous dust during his forty years of employment as a 

power plant employee. On March 26, 2013, he was granted a 10% permanent partial disability 

award due to occupational pneumoconiosis. Mr. Burgess retired in September of 2005. 

Pulmonary function studies performed at East Ohio Regional Hospital on February 27, 

2018, showed a prebronchodilator forced vital capacity (“FVC”) of 93% of predicted and a 

postbronchodilator FVC that was 85% of predicted.1 Prebronchodilator forced expiratory volume 

in one second (“FEV1”) was 74% of predicted and postbronchodilator was 67% of predicted.

2 The 

FEV1/FVC ratio was 57% both pre and postbronchodilator.3 DCLO4 was 42% of predicted and 

DL/VA5 was 81% of predicted. Blood gas studies showed a partial pressure of carbon dioxide 

(“PCO2”)6 of 43.2 and a partial pressure of oxygen (“PO2”)7 of 76.8. Based on the studies, Attila 

Lenkey, M.D., performed an occupational lung disease evaluation that day in which Mr. Burgess

reported an occasional cough and wheezing. He stated that he smoked off and on for twenty years. 

Dr. Lenkey noted a significant history of exposure to dust, asbestos, coal dust, silica, solvents, 

clay, sand, and diesel. Based on the pulmonary function study, Dr. Lenkey opined that Mr. 

Burgess’s impairment had progressed due to his occupationally caused chronic obstructive 

pulmonary disease. He found 40% impairment and noted that a claimant can suffer from significant 

1

FVC is the volume of air that can be forcefully exhaled from the lungs after a maximal 

inspiration. See West Virginia Code of State Rules § 85-20-52.9(d)(1).

2

FEV1 is the volume of air that can be exhaled forcefully from the lungs in one second 

after a maximal inspiration. See West Virginia Code of State Rules § 85-20-52.9(d)(2). 

3

FEV1/FVC refers to the forced expiratory volume (timed) to forced expiratory volume, 

which is expressed as a percentage. See West Virginia Code of State Rules § 85-20-52.9(d)(4).

4

DLCO is the carbon monoxide diffusion capacity of the lungs. See West Virginia Code of 

State Rules § 85-20-52.9(d)(14).

5

DL/VA refers to the carbon monoxide diffusing capacity of the lungs per unit of alveolar 

volume. See West Virginia Code of State Rules § 85-20-52.9(d)(15).

6

PCO2 7

PO2 
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lung disease despite having a normal looking x-ray. A March 8, 2018, chest x-ray showed no 

evidence of occupational pneumoconiosis. 

Pulmonary function studies performed at the Occupational Lung Center on December 11, 

2018, indicate Mr. Burgess smoked a third of a pack of cigarettes a day for five years but quit 

smoking twenty years prior. Prebronchodilator FVC was 80% of predicted and postbronchodilator 

FVC was 85% of predicted. Prebronchodilator FEV1 was 78% of predicted and postbronchodilator 

was 77%. The FEV1/FVC ratio was 70 prebronchodilator and 65 postbronchodilator. Diffusion 

studies showed a DCLO of 73% of predicted and DL/VA was 89% of predicted. The 

carboxyhemoglobin was 1.5. 

The Occupational Pneumoconiosis Board’s December 11, 2018, findings indicate Mr. 

Burgess was previously granted a 10% permanent partial disability award. Mr. Burgess was 

seventy-two and had a forty year history of occupational dust exposure. Examination showed harsh 

breath sounds and wheezing in both lungs. X-rays showed insufficient evidence to establish a 

diagnosis of occupational pneumoconiosis. The Occupational Pneumoconiosis Board found that 

Mr. Burgess was fully compensated by his prior permanent partial disability award. On February 

5, 2019, the claims administrator determined that Mr. Burgess was fully compensated by a prior 

10% permanent partial disability award.

Jack Willis, M.D., testified in a July 17, 2019, initial hearing on behalf of the Occupational 

Pneumoconiosis Board that he reviewed three x-rays of Mr. Burgess’s chest from 2013, 2016, and 

2018. He saw no evidence of occupational pneumoconiosis but did see mild hyperinflation which 

suggests chronic obstructive pulmonary disease. Dr. Willis stated that mild hyperinflation is most 

often caused by cigarette smoking and is not associated with occupational pneumoconiosis. Jack 

Kinder, M.D., also of the Occupational Pneumoconiosis Board, testified that Mr. Burgess’s 

pulmonary testing performed at East Ohio Regional Medical Center showed impairment above 

10%; however, the studies were not accurate. Dr. Kinder stated that Mr. Burgess exhaled for over 

twenty seconds during the test, causing an artificially elevated FVC. Testing usually cuts off 

between sixteen and eighteen seconds. Dr. Kinder further testified that physical examination of 

Mr. Burgess showed harsh breath sounds, which is consistent with bronchospastic disease caused 

by smoking. He also noted that Mr. Burgess’s chest x-rays were negative for occupational 

pneumoconiosis. Dr. Kinder opined that the pulmonary studies taken on December 11, 2018, were 

valid and showed no more than 10% permanent partial disability. Mallinath Kayi, M.D., also of 

the Occupational Pneumoconiosis Board, concurred that the December 11, 2018, pulmonary 

testing was valid and that Mr. Burgess was fully compensated by his prior 10% permanent partial 

disability award.

The Occupational Pneumoconiosis Board testified in a final hearing on November 4, 2020, 

that its opinion remained unchanged. Dr. Kinder again opined that the East Ohio Regional Medical 

Center pulmonary testing was unreliable because Mr. Burgess was allowed to exhale for twentytwo seconds, creating an artificially lowered ratio. Dr. Kinder also stated that Mr. Burgess’s 

volumes showed an increase since his 2016 studies, which was unlikely due to his age. Bradley 

Henry, M.D., also of the Occupational Pneumoconiosis Board, agreed with Dr. Kinder. He testified 
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that the East Ohio Regional Medical Center study was inaccurate and opined that Mr. Burgess was 

fully compensated by his prior 10% permanent partial disability award. 

In a January 4, 2021, Order, the Office of Judges affirmed the claims administrator’s 

decision finding that Mr. Burgess was fully compensated by his prior 10% permanent partial 

disability award. It noted that the Occupational Pneumoconiosis Board’s findings are usually based 

on the spirometry studies that show the greatest flow. However, the Occupational Pneumoconiosis 

Board testified that the East Ohio Regional spirometry studies, which showed the highest flow, 

were invalid because Mr. Burgess was allowed to exhale for too long. This affected the ratio 

findings and resulted in an inaccurate assessment of Mr. Burgess’s impairment. The Occupational 

Pneumoconiosis Board concluded that the pulmonary function studies performed at the 

Occupational Lung Center on December 11, 2018, were the most reliable of record and showed 

no impairment above 10%. The Office of Judges concluded that the claims administrator was 

correct to find that Mr. Burgess was fully compensated by his prior 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 May 6, 2021.

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. West Virginia Code § 23-4-6a provides that the Office of Judges 

“shall affirm the decision of the Occupational Pneumoconiosis Board made following [the] hearing 

unless the decision is clearly wrong in view of the reliable, probative and substantial evidence on 

the whole record.” Mr. Burgess has failed to submit sufficient evidence to show that the 

Occupational Pneumoconiosis Board’s opinion is clearly wrong. 

 Affirmed.

ISSUED: September 19, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison 

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice William R. Wooton 

Justice C. Haley Bunn