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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS 

Jeffrey Hill,

Claimant Below, Petitioner

vs.) No. 21-0936 (BOR Appeal No. 2056860)

(Claim No. 2019016626)

 

Murray American Energy, Inc., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Jeffrey Hill appeals the decision of the West Virginia Workers’ Compensation 

Board of Review (“Board of Review”). Murray American Energy, Inc. filed a timely response.1

The issue on appeal is permanent partial disability. The claims administrator granted a 10% 

permanent partial disability award on July 31, 2019. The Workers’ Compensation Office of Judges

(“Office of Judges”) reversed the decision in its May 24, 2021, Order and granted a 0% permanent 

partial disability award. The Order was affirmed by the Board of Review on October 18, 2021.

Upon our review, we determine that oral argument is unnecessary and that a memorandum decision 

affirming the Board of Review’s decision is appropriate. See W. Va. R. App. P. 21. 

Mr. Hill contends that he developed occupational pneumoconiosis in the course of and 

resulting from his employment as a coal miner. On September 11, 2018, he was evaluated by 

Melvin Saludes, M.D., at East Ohio Regional Hospital. It was noted that he had a significant 

history of cigarette smoking of approximately two packs a day for thirty years. At the time of the 

evaluation, he smoked half a pack a day. A chest x-ray was performed and showed Q/T opacities 

with a 1/1 profusion in all six lung zones. Pulmonary function testing showed a mild obstruction, 

and a diffusion study was normal. Dr. Saludes diagnosed simple occupational pneumoconiosis 

with approximately 20% impairment. It was noted that Mr. Hill’s obstructive lung disease was the 

result of cigarette smoking but that his coal dust exposure was a contributing factor. 

Mr. Hill filed a claim for occupational pneumoconiosis benefits on January 29, 2019. The 

claim was held compensable on a non-medical basis on March 21, 2019. Mr. Hill was examined 

by the Occupational Pneumoconiosis Board on June 11, 2019. It noted that Mr. Hill had thirty-six 

years of occupational exposure to the hazards of occupational pneumoconiosis. It also noted that 

Mr. Hill had a history of less than thirty-pack years of cigarette smoking. An x-ray was performed 

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Petitioner, Jeffrey Hill, is represented by J. Thomas Greene Jr. and T. Colin Greene, and 

respondent, Murray American Energy, Inc., is represented by Aimee M. Stern.

FILED

September 14, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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and showed insufficient pleural or parenchymal changes necessary to establish a diagnosis of 

occupational pneumoconiosis. The Board concluded that Mr. Hill’s pulmonary function studies 

were normal, but his diffusion studies suggested 10% impairment. On July 31, 2019, Mr. Hill was 

granted a 10% permanent partial disability award. The employer protested the decision. On 

December 20, 2019, Mr. Hill underwent a diffusion study at CAMC Occupational Lung Center 

which was interpreted as normal. 

Occupational Pneumoconiosis Board Members testified in a hearing before the Office of 

Judges on April 7, 2021. Jack Kinder, M.D., testified that the OP Board recommended 10% 

impairment based upon its June 11, 2019, testing, which showed 75% diffusion capacity. Dr. 

Kinder noted that the study performed at East Ohio Hospital showed an abnormal diffusion rate of 

65%, which would be 15% impairment. However, after the bronchodilator study with super 

volume adjustment, there was no impairment. Dr. Kinder testified that Mr. Hill had a significant, 

thirty-eight-pack year history of cigarette smoking and opined that the slight decrease in Mr. Hill’s 

diffusion study could be the result of smoking. He stated that the lung volume studies performed 

on December 20, 2019, at CAMC were the highest volumes of record and are therefore the best 

indicator of permanent impairment. Further, Mr. Hill had a negative x-ray. Dr. Kinder concluded 

that there was insufficient evidence to justify a diagnosis of occupational pneumoconiosis and, 

therefore, no impairment could be attributed to occupational pneumoconiosis. Mallinath Kayi, 

M.D., also of the Occupational Pneumoconiosis Board, concurred with Dr. Kinder’s testimony. 

In its May 24, 2021, order, the Office of Judges reversed the claims administrator’s grant 

of a 10% permanent partial disability award and granted no award. It found that occupational 

pneumoconiosis is a progressive disease that does not improve. Therefore, testing which shows 

the highest volumes is normally considered to be the best indicator of impairment. The Office of 

Judges noted that the first two studies showed deficient diffusion results suggestive of impairment. 

However, the most recent testing, performed on December 20, 2019, showed no impairment. The 

Office of Judges found the opinion of the Occupational Pneumoconiosis Board was more reliable 

than the study performed by East Ohio Regional because the Occupational Pneumoconiosis Board 

had more evidence in the form of the new study. The Office of Judges therefore reversed the 10% 

permanent partial disability award and ruled that Mr. Hill was entitled to no award for permanent 

impairment. The Board of Review adopted the findings of fact and conclusions of law of the Office 

of Judges and affirmed the decision on October 18, 2021. 

This Court may not reweigh the evidentiary record, but must give deference to the findings, 

reasoning, and conclusions of the Board of Review, and when the Board’s decision effectively 

represents a reversal of a prior order of either the Workers’ Compensation Commission or the 

Office of Judges, we may reverse or modify that decision only if it is in clear violation of 

constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so 

clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor 

of the Board’s findings, reasoning, and conclusions, there is insufficient support to sustain the 

decision. See W. Va. Code §§ 23-5-15(c) & (e). We apply a de novo standard of review to questions 

of law. See Justice v. W. Va. Off. Ins. Comm’n, 230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012).
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After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. West Virginia Code § 23-4-6a provides that the Office of Judges 

“shall affirm the decision of the Occupational Pneumoconiosis Board made following [the] hearing 

unless the decision is clearly wrong in view of the reliable, probative and substantial evidence on 

the whole record.” The most reliable testing of record was performed by the Occupational 

Pneumoconiosis Board on December 20, 2019, and it showed no impairment due to occupational 

pneumoconiosis. The Office of Judges, and by extension Board of Review, committed no error in 

finding the Occupational Pneumoconiosis Board’s opinion to be the most persuasive of record. 

 Affirmed.

ISSUED: September 14, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton 

Justice C. Haley Bunn