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 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

RICHARD GARDNER SR.,

Claimant Below, Petitioner

vs.) No. 19-0910 (BOR Appeal No. 2054340)

(Claim No. 2018003074)

 

MURRAY AMERICAN ENERGY, INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Richard Gardner Sr., by counsel Robert L. Stultz, appeals the decision of the 

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

Energy, Inc., by counsel David K. Liberati and Aimee M. Stern, filed a timely response.

The issue on appeal is permanent partial disability. The claims administrator granted Mr. 

Gardner a 10% permanent partial disability award on March 6, 2018. On June 6, 2019, the 

Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the award granted by the 

claims administrator. This appeal arises from the Board of Review’s Order dated September 18, 

2019, in which the Board affirmed the Order of the Office of Judges. 

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. Gardner filed a claim for occupational pneumoconiosis benefits on July 17, 2017. He 

reported that he was exposed to dust while working in the State of West Virginia for over forty 

years. In support of his claim, he submitted the results of his medical examination conducted at 

East Ohio Regional Hospital on May 31, 2017. The examination included an x-ray, pulmonary 

function studies, and a blood gas study. The chest x-ray read by Jeffrey S. Unger, M.D., indicated 

interstitial opacities of 0/1, which is not consistent with the degree characterizing pneumoconiosis. 

Melvin Saludes, M.D., interpreted the pulmonary function studies and the arterial blood gas studies 

in conjunction with the x-ray, and made the following comments in the report:

FILED

February 19, 2021

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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“PLAN:

This patient does have findings consistent with mild obstructive lung disease. 

The etiology for this could be COPD related to coal dust exposure and 

smoking. Asthma is also a consideration that needs to be evaluated. . . Based 

on those findings, he has significant pulmonary impairment that would put 

him at a level of about 20-25% based on Table 85-20A.

ASSESSMENT:

No evidence for simple/medical pneumoconiosis. I based this on his chest xray showing S and T opacifications with a 0/1 profusion, which is considered 

negative for pneumoconiosis. He does have obstructive lung disease to a mild 

degree, which could be exacerbated by underlying asthma or coal dust 

exposure.” 

Dr. Saludes also noted that Mr. Gardner smoked for nearly forty years. 

The claims administrator issued its nonmedical finding on October 6, 2017, determining 

that Mr. Gardner’s claim was a presumptive claim. He was referred to the Occupational 

Pneumoconiosis Board (“OP Board”) for evaluation. On January 11, 2018, he was examined at 

the CAMC Lung Center and diagnosed with 10% pulmonary function impairment attributable to 

occupational pneumoconiosis. In its findings, the OP Board noted that the diagnosis was made due 

to the diffusion studies conducted on January 11, 2018. The OP Board’s chest x-ray showed 

insufficient pleural or parenchymal changes to establish a diagnosis of occupational 

pneumoconiosis. It was also noted that Mr. Gardner has a significant smoking history.

The claims administrator issued an Order dated March 6, 2018, which granted 10% 

permanent partial disability for occupational pneumoconiosis in accordance with the findings of 

the OP Board dated January 11, 2018. Mr. Gardner protested the claims administrator’s decision 

by arguing that he must be awarded benefits based upon the reliable evidence showing the highest 

degree of impairment, which is 25% impairment. 

At the OP Board hearing on June 6, 2018, Jack L. Kinder, M.D., testified that the studies 

relied on by the OP Board were valid and reproducible and indicated an overall degree of 

impairment of approximately 15% based upon the post bronchodilator ratio of 70. Dr. Kinder also 

testified that the OP Board’s diffusion study revealed an overall impairment of 20% based upon 

the OP Board’s diffusing capacity for carbon monoxide (“DLCO”) test. Dr. Kinder was asked to 

review the medical records from East Ohio Regional Hospital. Dr. Kinder summarized his 

testimony by stating:

“This is a presumptive claim. I don’t believe that half of his disease I could 

relate to his pneumoconiosis or his occupational exposure, but presumptively, 

I believe 10% is an appropriate recommendation.”
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Mallinath Kayi, M.D., agreed with Dr. Kinder’s assessment that Mr. Gardner is only entitled to a 

permanent partial disability award of 10% attributable to occupational pneumoconiosis. 

On April 3, 2019, John A. Willis, M.D., testified at the final OP Board hearing that the xray taken by the OP Board was “basically a negative chest film.” In reviewing the medical evidence 

submitted, Dr. Kinder testified:

“In this case, the gentleman had smoked approximately 25 years at a 1/3 pack 

a day according to our report. In the other reports that I have found, there was 

a 40 year at a 1⁄2 pack a day, a 39 year at a 1⁄4 pack a day. So, I believe he has 

smoked a significant amount. Whichever one you wish to use as his actual 

representation, but I believe that smoking-induced lung disease is causing the 

remainder of his pulmonary problem.”

Bradley Henry, M.D., agreed with Dr. Kinder’s assessment and testified that he would attribute 

10% impairment to pneumoconiosis based upon the present record. 

On June 6, 2019, the Office of Judges affirmed the claims administrator’s Order dated 

March 6, 2018. The Office of Judges determined that the OP Board was not clearly wrong in 

finding that Mr. Gardner had 10% impairment due to occupational pneumoconiosis. Although the 

OP Board noted that the East Ohio Regional study had the best volumes that showed overall 

impairment of 25%, the OP Board concluded that only 10% of Mr. Gardner’s impairment was 

attributable to occupational pneumoconiosis. Smoking induced lung disease was specifically 

identified as the cause of the remainder of Mr. Gardner’s pulmonary problem. The Board of 

Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed 

the granting of a 10% award in an Order dated September 18, 2019.

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

affirmed by the Board of Review. The OP Board acknowledged that the East Ohio Regional 

Hospital studies had higher volumes that demonstrated overall impairment to be 25%. However, 

the OP Board also considered its own negative x-ray, which was insufficient for a diagnosis of 

pneumoconiosis, as well as Mr. Gardner’s substantial history of cigarette smoking, to conclude 

that only 10% of his overall impairment is due to occupational pneumoconiosis. The remaining 

amount of impairment is attributable to smoking-induced lung disease. 

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: February 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