STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 13, 2013 

RORY L. PERRY II, CLERK 

GARY L. STREET, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0463	 (BOR Appeal No. 2046555) 

(Claim No. 2009093267) 

AMFIRE, LLC,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Gary L. Street, by Robert L. Stultz, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Amfire, LLC, by Ann B. Rembrandt, 

its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 13, 2012, in 

which the Board affirmed an October 18, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 12, 2010, 

decision granting Mr. Street a 0% 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. Street worked as a coal miner for Amfire, LLC. He had worked as a coal miner for 

over thirty years. In April of 2009, Mr. Street was examined by Dr. Doyle who found that he had 

shallow respirations and diagnosed him as having chronic obstructive pulmonary disease. At the 

same time Dr. Parker diagnosed Mr. Street as having coal dust exposure causing obstructive lung 

disease. Following these diagnoses, Mr. Street filed an application for workers’ compensation 

benefits based on exposure to the hazards of occupational pneumoconiosis. Mr. Street’s claim 

was referred to the Occupational Pneumoconiosis Board who found, based on the radiographic 

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evidence in the case, that there were insufficient pleural and parenchymal changes to establish a 

diagnosis of occupational pneumoconiosis. The Occupational Pneumoconiosis Board also 

performed pulmonary function testing which failed to reveal evidence of impairment. Based on 

this opinion, on January 12, 2010, the claims administrator granted Mr. Street a 0% permanent 

partial disability award related to occupational pneumoconiosis. Mr. Street was then examined at 

East Ohio Regional Hospital by Dr. Saludes and underwent another pulmonary function test 

which revealed reduced total lung capacity with mild restrictive lung disease. Dr. Saludes 

interpreted this testing as demonstrating 20% pulmonary impairment which could be related to 

industrial bronchitis caused by coal dust exposure. But Dr. Saludes noted that Mr. Street’s x-rays 

did not reveal any evidence of pneumoconiosis. 

The Occupational Pneumoconiosis Board then testified in a hearing before the Office of 

Judges on August 17, 2011. Dr. Kinder, on behalf of the Occupational Pneumoconiosis Board, 

stated that he did not believe Mr. Street had either occupational asthma or occupational 

pneumoconiosis. Dr. Kinder stated there were no valid pulmonary function tests which showed 

that Mr. Street suffered from any pulmonary impairment. Dr. Kinder stated that the Occupational 

Pneumoconiosis Board’s pulmonary function testing was the most reliable testing in the case 

because it produced the highest volumes. Dr. Kinder repeated the Occupational Pneumoconiosis 

Board’s prior finding that Mr. Street suffered from no impairment due to occupational 

pneumoconiosis. On October 18, 2011, the Office of Judges affirmed the claims administrator’s 

decision. The Board of Review then affirmed the Order of the Office of Judges on March 13, 

2012, leading Mr. Street to appeal. 

The Office of Judges concluded that a preponderance of the evidence did not establish 

that Mr. Street suffered from occupational asthma or occupational pneumoconiosis. The Office 

of Judges concluded that whatever breathing restrictions Mr. Street exhibited were attributable to 

non-occupational causes. The Office of Judges found that the testimonial opinion of the 

Occupational Pneumoconiosis Board was the most credible evidence in the record. The Office of 

Judges found that the opinion of the Occupational Pneumoconiosis Board demonstrated that Mr. 

Street has no pulmonary impairment attributable to occupational exposure. 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. Street has not demonstrated that he has suffered any pulmonary impairment related 

to either occupational asthma or occupational pneumoconiosis. The consistent report and 

testimony of the Occupational Pneumoconiosis Board demonstrates that there is no valid 

pulmonary function testing that attributes Mr. Street’s impairment to occupational causes. The 

opinion of the Occupational Pneumoconiosis Board is the most credible evidence in the case and 

the Office of Judges was within its discretion in relying on its testimony. 

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. 

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Affirmed. 

ISSUED: December 13, 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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