STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

May 7, 2015 

RORY L. PERRY II, CLERK 

ROGER L. HOSCHAR, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0745 (BOR Appeal No. 2049114) 

(Claim No. 2011024256) 

INDUSTRIAL CONTRACTORS, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Roger L. Hoschar, by John H. Skaggs, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Industrial Contractors, Inc., by Jillian 

L. Moore, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated June 30, 2014, in which 

the Board affirmed a December 12, 2013, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s February 21, 2011, decision 

denying Mr. Hoschar’s application for workers’ compensation benefits. 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. Hoschar was employed as a boilermaker for Industrial Contractors, Inc. Beginning in 

2006 and continuing for thirteen months, Mr. Hoschar worked at the Philip Sporn Power Plant in 

Mason County, West Virginia. The job site was often covered in pigeon droppings which had to 

be cleaned away before Mr. Hoschar could begin repairing the boilers at the plant. On a daily 

basis, Mr. Hoschar used an air hose to blow a significant amount of dried pigeon droppings away 

from his work site. While performing these cleaning operations, Mr. Hoschar wore protective 

overalls and a respirator, but he would still come in contact with some pigeon droppings. Several 

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years after the job finished, Mr. Hoschar injured his knee. Mr. Hoschar underwent surgery at 

Holzer Medical Center for this condition, and while preparing for surgery, an x-ray was taken of 

his chest which showed a large mass in his right lung. Mr. Hoschar then underwent a lobectomy 

at the Holzer Medical Center which revealed extensive bullous disease in the right lung. The 

surgical report indicated that there was extensive necrotizing granulomatous inflammation but 

the mass was negative for fungi and acid-fast bacillus. Mr. Hoschar was then treated by Frances 

T. Agyei-Gyamfi, M.D., who believed that the mass was related to histoplasmosis. He believed 

that the region Mr. Hoschar lived in was endemic for a histoplasmosis infection. Dr. AgyeiGyamfi noted, however, that the serology analysis of the mass was negative for all fungal 

sources, including histoplasmosis, and therefore, the diagnosis was unlikely. Pathology testing 

was also conducted at Ohio State University Medical Center because of the suspicion that the 

mass was a histoplasmosis. The testing was negative for various types of fungus but did reveal a 

few yeast-like cells in the lung mass that were consistent with histoplasmosis. Bruce A. 

Guberman, M.D., then evaluated Mr. Hoschar. He noted that Mr. Hoschar had smoked two packs 

of cigarettes a day for twenty-five years, but his impression was that the lung mass was a 

histoplasmosis which he developed from exposure to pigeon droppings while working at the 

Philip Sporn Power Plant. 

Following this evaluation, Mr. Hoschar filed an application for workers’ compensation 

benefits alleging that the lung mass was caused by occupational exposure to pigeon droppings. 

On February 21, 2011, the claims administrator rejected Mr. Hoschar’s application. Alan M. 

Ducatman, M.D., examined Mr. Hoschar. He found that Mr. Hoschar had pre-existing chronic 

obstructive pulmonary disease due to his significant history of cigarette smoking. However, Dr. 

Ducatman believed that Mr. Hoschar’s lung mass was caused by histoplasmosis related to 

exposure to pigeon droppings at the Philip Sporn Power Plant. Dr. Ducatman found that 

exposure to bird droppings was a classic source of histoplasmosis. George L. Zaldivar, M.D., 

also evaluated Mr. Hoschar. He found that Mrs. Hoschar had also developed a histoplasmosis in 

the eye which indicated that Mr. Hoschar’s lung mass was not occupationally related. Dr. 

Zaldivar found that the record did not contain a consistent diagnosis of a histoplasmosis. He also 

found that if the lung mass was related to histoplasmosis, it was more likely related to Mr. 

Hoschar’s outdoor activities such as hunting and fishing because the fungus that causes 

histoplasmosis was endemic to the region in which Mr. Hoschar lived. He also found that it was 

unlikely that Mr. Hoschar developed histoplasmosis related to his work because he wore 

protective equipment such as a respirator when he was exposed to pigeon droppings. Marsha 

Bailey, M.D., also evaluated Mr. Hoschar. She found that he had chronic obstructive pulmonary 

disease but that it was entirely related to his smoking history. She also found that the pathology 

reports taken of the mass in Mr. Hoschar’s right lung did not reveal any evidence of 

histoplasmosis. Although she found that the etiology of the lung mass was unclear, the medical 

evidence did not draw a causal connection between his work and the condition. Following this 

evaluation, Dr. Zaldivar issued an addendum report stating that he believed Mr. Hoschar had 

developed histoplasmosis in his right lung prior to working at the Philip Sporn Power Plant. Dr. 

Zaldivar pointed out that x-rays had been taken of Mr. Hoschar’s lungs in 2003 which showed 

granuloma scar tissue in his lungs consistent with a diagnosis of histoplasmosis. On December 

12, 2013, the Office of Judges affirmed the claims administrator’s decision. The Board of 

Review affirmed the Office of Judges’ Order on June 30, 2014, leading Mr. Hoschar to appeal. 

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The Office of Judges concluded that there was no evidence that histoplasmosis was 

responsible for Mr. Hoschar’s lung mass or that he contracted an occupational disease in the 

course of and as a result of his employment at the Philip Sporn Power Plant. The Office of 

Judges determined that Mr. Hoschar suffered from an ordinary disease of life or from 

emphysema and chronic obstructive pulmonary disease from over twenty-five years of smoking. 

The Office of Judges reached this determination based on the reports of Dr. Zaldivar. It 

especially relied on his analysis of the 2003 chest x-rays and his opinion that the cause of the 

mass in Mr. Hoschar’s lungs pre-dated his employment at Philip Sporn Power Plant. The Office 

of Judges also found that the available pathology reports indicated that there was no known 

etiology of the lung mass. The Office of Judges considered the pathology report from Ohio State 

University Medical Center, but it found that the conclusions were not sufficiently supported in 

the record. The Office of Judges found that this report was not sufficient to find that Mr. 

Hoschar’s lung mass was related to histoplasmosis that was caused by his work. The Office of 

Judges also considered the reports of Dr. Ducatman and Dr. Guberman, but it found that their 

conclusions were dependent on the diagnosis from Ohio State University Medical Center and 

were not consistent with the remainder of the evidence in the record. The Board of Review 

adopted the findings of the Office of Judges and affirmed its Order. 

We agree with the conclusions of the Board of Review and the findings of the Office of 

Judges. Mr. Hoschar has not demonstrated that he contracted histoplasmosis, which developed 

into the mass in his lungs, in the course of and resulting from his employment. The mass 

removed from Mr. Hoschar’s right lung was initially attributed to histoplasmosis, but the 

pathology testing of the mass was negative for all fungal sources including histoplasmosis. The 

pathology reports are supported by the treatment notes of Dr. Agyei-Gyamfi. The report of Dr. 

Zaldivar also indicates that it is unlikely that Mr. Hoschar developed histoplasmosis as a result of 

his employment because he wore protective gear, including a respirator, while he was cleaning 

away pigeon droppings at the Philip Sporn Power Plant. Dr. Zaldivar’s report further 

demonstrates that the mass in Mr. Hoschar’s lung was likely an ordinary disease of life instead of 

an occupational disease. The pathology report from Ohio State University Medical Center 

revealed some fungal source consistent with histoplasmosis, but its conclusions were not 

sufficiently supported by the remainder of the evidence in the record. The Office of Judges was 

within its discretion in disregarding this pathology report and the opinions of Dr. Ducatman and 

Dr. Guberman, which were based on the report’s conclusions. 

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: May 7, 2015 

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CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Brent D. Benjamin 

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