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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

AVALOTIS CORPORATION,

Employer Below, Petitioner

vs.) No. 20-0124 (BOR Appeal No. 2054464)

(Claim No. 2016028785)

 

JOSEPH HARPER, 

Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Avalotis Corporation, by Counsel Robert J. D’Anniballe Jr., appeals the decision 

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

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The issue on appeal is an additional compensable condition. The claims administrator 

denied the addition of reactive airway dysfunction syndrome (“RADS”) to the claim on June 27, 

2018. The Workers’ Compensation Office of Judges (“Office of Judges”) reversed the decision in 

its July 12, 2019, Order and added RADS to the claim. The Order was affirmed by the Board of 

Review on January 24, 2020.

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. 

On March 25, 2016, Mr. Harper, the claimant in this case, was exposed to sulfur dioxide 

in the course of his employment. He sought treatment the following day from MedExpress. Mr. 

Harper reported that he and his coworkers were exposed to sulfur dioxide levels of fifty parts per 

million. The level is supposed to be under two parts per million. Mr. Harper was diagnosed with 

unspecified lung injury and advised to seek treatment at the emergency room. Mr. Harper did and 

was seen at Camden Clark Medical Center Emergency Room. He reported eye irritation and 

shortness of breath after exposure to sulfur gas at work. Mr. Harper reported a recent air reading 

1 A response was not filed. 

FILED

March 19, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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of forty parts per million and stated that some of his coworkers were also ill. X-rays showed minor 

atelectasis in the left lung and a three-millimeter subpleural nodule. A chest CT scan showed minor 

atelectasis in the left lung base and a three-millimeter subpleural nodule in the right middle lobe. 

The Employees’ and Physicians’ Report of Injury was completed on May 8, 2016, and

indicates Mr. Harper was overexposed to flue gases at work. The physicians’ section was 

completed by Tyler Fisher, PA, at MedExpress, who indicated Mr. Harper sustained an inhalation 

injury to his lungs. 

Mr. Harper sought treatment from Michael Cheshire, D.O., on June 3, 2016, for shortness 

of breath. He was diagnosed with non-asthma reactive airway disease and elevated liver enzymes. 

It was noted that Mr. Harper quit smoking in November of 2015. He was referred to a 

pulmonologist. 

On March 6, 2017, Mr. Harper testified in a deposition that he smoked a pack of cigarettes 

every two to three months for about ten years. He stopped smoking in 2015. Mr. Harper stated that 

he first noticed occupational exposure symptoms when he developed congestion a few weeks after 

he began working for the employer. Mr. Harper testified that some of his coworkers developed 

rashes on their arms and legs. He also testified that on the day he stopped working, work was 

stopped due to symptoms he and his coworkers were experiencing. He stated that there was a 

visible, very open leak in the main duct found that day. Altogether, nine employees sought medical 

treatment for symptoms related to the exposure. Mr. Harper stated that he believed he was exposed 

to sulfur dioxide the entire time he worked for the employer because he could smell it. On crossexamination, Mr. Harper stated that he had a respirator and used it five to ten times per shift 

depending on the air quality. 

A May 23, 2017, treatment note by John Parker, M.D., indicates Mr. Harper was diagnosed 

with mild, intermittent asthma; shortness of breath; cough; RADS; and asthma due to inhalation 

of fumes. A methacholine challenge test was abnormal. 

Angelo Constantino, M.D., performed an independent medical evaluation on July 27, 2017,

in which he determined that Mr. Harper did not have occupational asthma. He found that Mr. 

Harper had a normal methacholine challenge test and normal pulmonary function studies. Dr. 

Constantino further stated that samples taken from Mr. Harper’s workplace showed sulfur dioxide 

levels at normal levels. Dr. Constantino found no evidence of lung disease that might mimic 

occupational asthma or restrictive airway disease. He opined that Mr. Harper’s symptoms were 

consistent with those of a smoker. Dr. Constantino opined that there was no credible evidence that 

Mr. Harper sustained a work-related lung injury as a result of sulfur dioxide exposure. 

Stuart Brooks, M.D., performed a Physician Review on November 6, 2017, in which he 

found that the methacholine challenge test showed borderline or normal bronchial responsiveness. 

He stated that this excludes current reactive airways or asthma. Dr. Brooks stated that exposure to 

significantly high levels of sulfur dioxide can cause RADS, but there is no objective evidence that 

Mr. Harper was exposed to hazardous levels at work. Dr. Brooks found that Mr. Harper’s 
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spirometric measurements were normal. Dr. Brooks opined that Mr. Harper did not meet the 

diagnostic criteria for RADS. Mr. Harper had reached maximum medical improvement. 

Dr. Parker testified in a November 10, 2017, deposition that he practices pulmonary critical 

care, occupational lung disease medicine, sleep medicine, and internal public health at WVU 

School of Medicine. He further stated that he is board certified in internal medicine, pulmonary 

disease. He is also a NIOSH B reader. Dr. Parker noted that pulmonary function tests were 

performed a year after the chemical exposure and showed normal results trending toward mild 

airflow obstruction. The methacholine challenge was mildly abnormal. Dr. Parker diagnosed 

RADS and irritant-induced asthma due to Mr. Harper’s occupational work exposure. Dr. Parker 

disagreed with the opinions of Drs. Brooks and Constantino. Dr. Parker found that Mr. Harper’s 

symptoms are common symptoms of RADS. Dr. Parker noted that Mr. Harper had no preexisting 

respiratory symptoms and that his symptoms developed following a specific exposure, for which 

Mr. Harper sought emergency treatment. Dr. Parker was questioned regarding the levels of sulfur 

dioxide measured at Mr. Harper’s job site. Dr. Parker stated that one must consider that 

measurements are not always performed at the specific area Mr. Harper was working in, so it can 

be difficult to determine Mr. Harper’s exact exposure level. 

On February 1, 2018, the Office of Judges reversed a May 18, 2016, claims administrator 

decision and held the claim compensable for inhalation injury to the lungs. The Office of Judges 

found that the exact level of sulfur dioxide Mr. Harper was exposed to could not be determined, 

but he was exposed to elevated levels. The Office of Judges stated that the claims administrator’s 

decision was made prior to Dr. Parker’s diagnosis of RADS. It therefore gave the claims 

administrator the opportunity to address the diagnosis in a separate Order. The decision was 

affirmed by the Board of Review on July 19, 2018. The claims administrator denied the addition 

of RADS to the claim on June 27, 2018.

In its July 12, 2019, Order, the Office of Judges reversed the claims administrator’s denial 

of the addition of RADS to the claim. It found that Mr. Harper and several of his coworkers were 

exposed to sulfur dioxide at their place of employment. Several employees sought medical

treatment for the exposure, including Mr. Harper. Mr. Harper was diagnosed with inhalation injury 

to both lungs and referred to Dr. Parker, a pulmonologist. Dr. Parker examined Mr. Harper and 

reviewed his diagnostic studies. Dr. Parker concluded that Mr. Harper developed RADS and 

irritant induced asthma due to his work-related chemical exposure. The Office of Judges found Dr. 

Parker’s report and opinion to be reliable and supported by the evidence of record.

The Office of Judges found Dr. Brooks’ report to be unpersuasive. Dr. Brooks concluded 

that Mr. Harper did not meet the diagnostic criteria for RADS because there was no documented

evidence that he was exposed to high levels of sulfur dioxide at work. He further stated that Mr. 

Harper’s methacholine challenge test was normal. The Office of Judges noted that in a prior 

February 1, 2018, decision, the Office of Judges found Dr. Brooks’ report to be less reliable 

because he only performed a record review. The Office of Judges also found in its prior Order that 

Dr. Constantino’s report was less reliable than that of Dr. Parker due to the long time period 

between Mr. Harper’s exposure and Dr. Constantino’s examination. The Office of Judges 

ultimately found Dr. Parker’s opinion that Mr. Harper developed RADS due to occupational 
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chemical exposure to be persuasive. The Office of Judges concluded that Mr. Harper was exposed 

to sulfur dioxide levels higher than ordinary in ambient air. The Board of Review adopted the 

findings of fact and conclusions of law of the Office of Judges and affirmed its Order on January 

24, 2020. 

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

affirmed by the Board of Review. The reports of Drs. Brooks and Constantino rely on the 

assumption that Mr. Harper was not exposed to high levels of sulfur dioxide at work. Though the 

measurements taken at Mr. Harper’s place of employment show normal levels, the evidence 

indicates Mr. Harper was exposed to excess levels of sulfur dioxide in the course of his 

employment. Significantly, Mr. Harper was not the only person to develop symptoms that day. 

Several of his coworkers also sought treatment for the chemical exposure. Mr. Harper sought 

treatment the day after the exposure occurred and was diagnosed with an inhalation injury to the 

lungs. Dr. Parker’s opinion is well supported by the evidence of record. The claim was properly 

held compensable for RADS. 

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 so clearly wrong based upon the evidentiary record that even when all 

inferences are resolved in favor of the Board of Review’s findings, reasoning, and conclusions, 

there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review 

is affirmed. 

 Affirmed

ISSUED: March 19, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton