STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

September 18, 2014 

RORY L. PERRY II, CLERK 

BLAINE A. KELLEY, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No.13-0289 (BOR Appeal No. 2047974) 

(Claim No. 2008045656) 

NEWTOWN ENERGY, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Blaine A. Kelley, appearing pro se, appeals the decision of the West Virginia 

Workers’ Compensation Board of Review. Newtown Energy, Inc., by H. Toney Stroud, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 6, 2013, in 

which the Board affirmed a December 18, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 7, 2009, 

decision denying the diagnosis of occupational pneumoconiosis as a compensable component 

and granted no permanent partial disability award. 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. Kelley worked as a coal miner for Newtown Energy, Inc. He stopped working in 

2007 due to colon cancer. Mr. Kelley completed a workers’ compensation application requesting 

that occupational pneumoconiosis be held compensable and that he be granted a permanent 

partial disability award. He submitted two PET scan reports from Raleigh General Hospital that 

stated he had occupational pneumoconiosis. Jack L. Kinder, M.D., Chairman of the Occupational 

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Pneumoconiosis Board, testified that the Board evaluated Mr. Kelley and took a chest x-ray that 

was negative for occupational pneumoconiosis. He opined there was no basis to make an 

occupational pneumoconiosis diagnosis. The claims administrator denied the diagnosis of 

occupational pneumoconiosis as a compensable component and granted no permanent partial 

disability award based on the Occupational Pneumoconiosis Board’s findings. 

The Office of Judges affirmed the claims administrator’s decision. It held that the 

Occupational Pneumoconiosis Board found that Mr. Kelley has no pulmonary impairment 

attributable to occupational pneumoconiosis and that Mr. Kelley has not submitted sufficient 

evidence to show that the Occupational Pneumoconiosis Board’s findings are clearly wrong. The 

Board of Review affirmed the Order of the Office of Judges. On appeal, Mr. Kelley disagrees 

and asserts that after his surgery, the physician informed him that he was remaining on oxygen 

longer than normal because he was not getting enough oxygen due to his occupational 

pneumoconiosis. He further asserts that the x-ray report clearly showed the presence of 

occupational pneumoconiosis and that Dr. Kinder gave false testimony by saying the x-ray was 

negative for occupational pneumoconiosis. Newtown Energy, Inc., maintains that Mr. Kelley is 

not entitled to any permanent partial disability award because the Occupational Pneumoconiosis 

Board found there was no evidence of occupational pneumoconiosis based on its x-rays that were 

negative for occupational pneumoconiosis. 

The Board of Review was correct to affirm the Office of Judges’ denial of occupational 

pneumoconiosis as a compensable component and deny a permanent partial disability award for 

occupational pneumoconiosis. The Office of Judges relied on the Occupational Pneumoconiosis 

Board’s findings. The Occupational Pneumoconiosis Board noted that Mr. Kelley stopped 

working in 2007 due to colon cancer. It examined Mr. Kelley on May 26, 2009, reviewed his 

pulmonary function studies, and took an x-ray of his chest. The Occupational Pneumoconiosis 

Board found that Mr. Kelley had been exposed to dust hazards approximately thirty-five years 

but had normal pulmonary function studies and normal x-rays as far as pneumoconiosis. The 

Occupational Pneumoconiosis Board took an x-ray of Mr. Kelley’s chest approximately two 

years after he had ceased working in 2007 and did not find pneumoconiosis on the x-ray. 

Therefore, it concluded that there was no basis to make a recommendation of impairment, and 

the Office of Judges agreed. The Office of Judges noted that Mr. Kelley submitted some 

evidence of a diagnosis of simple pneumoconiosis but that the evidence was insufficient to 

establish the Occupational Pneumoconiosis Board’s findings were clearly wrong. This Court 

affirms the Board of Review and holds that the evidence is insufficient to prove Mr. Kelley has 

occupational pneumoconiosis. 

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: September 18, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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