STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

April 14, 2014 

RORY L. PERRY II, CLERK 

ROBERT J. REYNOLDS, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-1306 (BOR Appeal No. 2047254) 

(Claim No. 2010106719) 

KINGSTON MINING, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Robert J. Reynolds, by Reginald D. Henry and Rodney A. Skeens, his 

attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review. 

Kingston Mining, Inc., by Shantel Boone Walker, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated October 5, 2012, in 

which the Board affirmed a May 21, 2012, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s August 23, 2010, 

decision granting Mr. Reynolds a 10% permanent partial disability award for occupational 

pneumoconiosis. The Office of Judges granted Mr. Reynolds 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. Reynolds worked for Kingston Mining, Inc., as an underground miner. On August 

31, 2009, following his retirement, Mr. Reynolds filed an application for workers compensation 

benefits. The physician’s section of Mr. Reynolds’s application was filled out by Sonja Mehta, 

D.O., who stated that he had occupational pneumoconiosis. Mr. Reynolds’s application also 

included a spirometry report from the New River Breathing Center which found that he had mild 

obstructive ventilator insufficiency. Mr. Reynolds’s claim was submitted to the Occupational 

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Pneumoconiosis Board, which found that there was sufficient evidence at the time to justify a 

diagnosis of occupational pneumoconiosis with 10% pulmonary impairment. On August 23, 

2010, the claims administrator granted Mr. Reynolds a 10% permanent partial disability award 

for occupational pneumoconiosis. Following the award, the Occupational Lung Center 

performed a post-bronchodilator diffusion test which was within normal limits. Donald L. 

Rasmussen, M.D., also evaluated Mr. Reynolds for occupational pneumoconiosis and found that 

there were no parenchymal or pleural abnormalities consistent with occupational 

pneumoconiosis. However, Dr. Rasmussen found that Mr. Reynolds’s reduced FEV1/FVC ratio, 

exhibited in the spirometry testing, showed that he had 10% pulmonary impairment. Dr. 

Rasmussen attributed Mr. Reynolds’s pulmonary impairment primarily to coal dust exposure and 

secondarily to a history of cigarette smoking. The Occupational Pneumoconiosis Board then 

testified at a hearing before the Office of Judges and, in light of the Occupational Lung Center 

post-bronchodilator study, concluded that Mr. Reynolds had no pulmonary impairment. The 

Occupational Pneumoconiosis Board testified that this test was the best study in the record. On 

May 21, 2012, the Office of Judges reversed the claims administrator’s decision and granted Mr. 

Reynolds no permanent partial disability award for occupational pneumoconiosis. The Office of 

Judges concluded that the claims administrator’s grant of a 10% permanent partial disability 

award was an overpayment. The Board of Review then affirmed the Order of the Office of 

Judges on October 5, 2012, leading Mr. Reynolds to appeal. 

The Office of Judges concluded that the Occupational Pneumoconiosis Board had found 

that there was insufficient evidence to demonstrate any pulmonary impairment attributable to 

occupational pneumoconiosis. The Office of Judges then adopted the conclusions of the 

Occupational Pneumoconiosis Board and held that the Board’s findings and conclusions had not 

been demonstrated to be clearly wrong. The Office of Judges noted that the Occupational 

Pneumoconiosis Board had testified that the more recent diffusion study of the Occupational 

Lung Center was normal and showed no pulmonary impairment. The Office of Judges also noted 

that the Occupational Pneumoconiosis Board believed that Dr. Rasmussen’s recommendation of 

10% impairment was not reliable because it did not take into account an adjustment for super 

volume. 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. Reynolds has not demonstrated that he is entitled to any permanent partial disability 

award for occupational pneumoconiosis. In its hearing testimony, the Occupational 

Pneumoconiosis Board found that the most reliable evidence of Mr. Reynolds’s impairment was 

the post-bronchodilator study conducted by the Occupational Lung Center, which showed that 

Mr. Reynolds’s diffusion capacity was within normal limits. The Occupational Pneumoconiosis 

Board testified that, in light of this study, there was insufficient evidence to find that any 

pulmonary impairment could be attributed to occupational pneumoconiosis. The Occupational 

Pneumoconiosis Board also indicated that the pulmonary testing of both Dr. Rasmussen and the 

New River Breathing Center were not as reliable, and it pointed out specific problems with both 

studies. The recommendation of the Occupational Pneumoconiosis Board is consistent with the 

remainder of the record. 

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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: April 14, 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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