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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 c ounsel Robert L. Stultz , appeals the decision of the

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

. Murray American Energy, Inc. , by c ounsel David K. Liberati and Aimee M. Stern , filed a timely response.

T he issue on appeal is permanent partial disability. The claims administrator gran ted 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 . T his 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 w ould 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 appro priate 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 s upport 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. Unge r, 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 VIRGINIA2 “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 x

ray showing S a nd 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

Pneumocon iosis 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 w as made due to the diffusion studies conducted on January 11, 2018. The OP Board’s chest x

- ray showed insufficient pleural o r 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 th e 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 th at 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 a n overall impairment of 20% based upon

the O P 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 pre sumptive 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. ”3 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 x

ray 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 y ear 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 prob lem.”

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

M arch 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 pul monary 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 O P Board also considered its own negative x

- ray , w hich 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 att ributable to smoking

- induced lung disease.

F or 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, n or is it based upon a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed

.

Affirm ed.4 ISSUED: February 19, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchiso n Justice William R. Wooton