Randy D. Bohall v. Murray American Energy, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
RANDY D. BOHALL, November 18, 2022
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-88 (BOR Appeal No. 2058140)
(JCN: 2017010501)

MURRAY AMERICAN ENERGY, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Randy D. Bohall appeals the August 10, 2022, order of the Workers’
Compensation Board of Review (“Board”). Respondent Murray American Energy, Inc.
filed a timely response.1 Petitioner did not file a reply brief. The issue on appeal is whether
the Board erred in affirming the decision by the Workers’ Compensation Office of Judges
(“OOJ”) that affirmed the claim administrator’s order granting no additional permanent
partial disability award for occupational pneumoconiosis (“OP”).

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ briefs, the record on appeal, and the applicable
law, this Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the lower tribunal’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Mr. Bohall filed a claim for OP in 2016 for which the date of last exposure was
December 15, 2013.2 The claim administrator held the claim compensable for OP by order
dated November 16, 2016, and also stated that Mr. Bohall was entitled to the statutory
presumption set forth at West Virginia Code § 23-4-8c(b) (2009). 3

Petitioner is represented by J. Thomas Greene, Jr., Esq. and T. Colin Greene, Esq.
1

Respondent is represented by Aimee M. Stern, Esq.
2
According to the OP Board’s findings dated April 4, 2017, Mr. Bohall retired in
April 2014.
3
The statute provides that, when certain criteria are met, it is presumed that a
worker’s pulmonary impairment is due to his or her occupational exposure. However, the
presumption is not conclusive.
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On April 4, 2017, the Occupational Pneumoconiosis Board (“OP Board”) examined
Mr. Bohall. The OP Board determined he had been exposed to a dust hazard while working
as an underground coal miner and mechanic for twenty years and as a surface coal
miner/mechanic/electrician for three years. The OP Board found that the chest x-ray was
negative and did not establish a diagnosis of pneumoconiosis. The OP Board noted mild
wheezing and that he had been diagnosed with COPD. The pulmonary function study
indicated that Mr. Bohall had a smoking history of one-half of a pack of cigarettes per day
for twenty years. Based upon the pulmonary function study and the examination, the OP
Board diagnosed OP with 15% pulmonary function impairment attributable to the disease.
The claim administrator issued an order dated May 24, 2017, granting a 15% permanent
partial disability (“PPD”) award based on the OP Board’s report.

On August 12, 2019, the claim administrator granted Mr. Bohall’s reopening
application. Mr. Bohall was again examined by the OP Board on October 6, 2020, and
pulmonary function testing was performed. Additionally, the OP Board reviewed a report
from East Ohio Regional Hospital dated September 10, 2018, relied upon by Mr. Bohall to
reopen the claim. The OP Board noted that Mr. Bohall was diagnosed with COPD and he
used bronchodilator medication. Mr. Bohall’s cigarette smoking history was reported as
0.8 packs per day for thirty-five years. The chest x-ray showed insufficient pleural or
parenchymal changes to establish a diagnosis of pneumoconiosis. The diffusion study was
determined to be invalid due to elevated carboxyhemoglobin. After reviewing the record
and the testing, the OP Board found sufficient evidence to justify a diagnosis of OP with
no more than a 15% pulmonary impairment attributable to the disease, as previously found
on April 4, 2017, after taking Mr. Bohall’s smoking history into account.

By order dated December 8, 2020, the claim administrator granted no additional
PPD in the claim based upon the OP Board’s findings dated October 6, 2020, which
indicated Mr. Bohall was fully compensated by his previous 15% award.

On January 26, 2022, Mr. Bohall was evaluated by Shawn Posin, M.D., to whom
Mr. Bohall reported a diagnosis of COPD, the use of inhalers, and a history of working in
coal mines for twenty-six years. Dr. Posin noted Mr. Bohall’s “significant smoking history”
consisted of smoking one pack of cigarettes per day since age eighteen. Dr. Posin
commented that Mr. Bohall had “some periods where he tried to stop” smoking, but he
continued to smoke at the rate of one-half to one pack per day.

Dr. Posin performed a pulmonary function study and found it was consistent with a
diagnosis of a mild obstructive defect and a moderate reduction in diffusion. He concluded
that the FEV1/FVC revealed 40% impairment. He also found a marked decrease in
diffusion capacity, although the report noted a “high” carboxyhemoglobin measurement at
5.6. Taking into account his smoking history, Dr. Posin attributed 30% impairment to Mr.
Bohall’s occupational exposure. A chest x-ray performed at this visit was negative.

2
The OP Board members Jack Kinder, M.D., Johnsey Leef, M.D., and Bradley
Henry, M.D. testified at a hearing before the Office of Judges on February 2, 2022. Dr.
Leef testified that the chest x-rays dated October 6, 2020, and April 20, 2017, were of good
quality and did not show evidence of OP. He observed there was some hyperinflation on
the most recent x-ray, which was consistent with COPD. Dr. Kinder reviewed pulmonary
function studies dated October 6, 2020, April 4, 2017, and January 26, 2021. He stated the
study with the best or highest “overall volumes” was the one performed on October 6,
2020, and it demonstrated an overall 50% pulmonary impairment based upon the post-
bronchodilator ratio. He noted that the post-bronchodilator study revealed a particularly
large super volume on the FVC, but the diffusion study was invalid due to the
carboxyhemoglobin of 4.0.

Dr. Kinder testified that the volumes from the 2020 study showed a significant
improvement in the FVC and FEV1 from the 2017 study. He also stated the OP Board’s
study in 2020 had better volumes than the study performed by Dr. Posin. In further
explaining how the OP Board chose the 2020 study as the basis of its findings, Dr. Kinder
said the OP Board uses the best study within a two-year period because that represents the
true impairment. He testified that OP is an irreversible disease, and the test with the highest
volumes represents a person’s best performance.

According to Dr. Kinder, the OP Board attributed the pulmonary impairment
beyond 15% to Mr. Bohall’s thirty-five years of smoking at the rate of 0.8 packs per day.
Dr. Kinder also observed that Mr. Bohall continued to smoke. Mr. Bohall did not question
the OP Board about the smoking history or any discrepancies between the three reports
concerning the smoking history. After reviewing all of the studies, Dr. Kinder said he felt
that 15% impairment was appropriate, and Dr. Henry concurred. Given that the volumes
in the recent test were better than in the prior testing, and there was no change seen on the
x-ray, Dr. Kinder testified that the OP Board did not find a reason to increase the
impairment recommendation for the claim.

On May 25, 2022, the OOJ issued a decision affirming the claim administrator’s
order that granted no additional PPD and found Mr. Bohall had been fully compensated by
the prior 15% PPD award. The OOJ found that Mr. Bohall did not establish that the OP
Board was clearly wrong in concluding he was fully compensated by his prior 15% award.
It noted that the study by Dr. Posin did not demonstrate the best volumes. Mr. Bohall
appealed the OOJ’s decision. On August 10, 2022, the Board issued an order affirming the
OOJ’s decision and adopting the OOJ’s findings of fact and conclusions of law, except for
a few non-consequential, typographical errors. It is from the Board’s order that Mr. Bohall
now appeals.

The standard of review applicable to this Court’s consideration of workers’
compensation appeals has been set out under West Virginia Code § 23-5-12a(b) (2022), as
follows:
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The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

On appeal, Mr. Bohall argues that the Board erred in adopting the incorrect
testimony and findings of the OP Board. Specifically, Mr. Bohall alleges that Dr. Kinder
testified that the pulmonary function study performed on October 6, 2020, had the best
volumes and it demonstrated a 50% pulmonary function impairment based upon the post-
bronchodilator FEV1/FVC ratio. He contests Dr. Kinder’s opinion that the more recent
test, revealing 50% overall impairment, constituted an “improvement” in volumes
compared to the testing performed in 2017, which revealed a 40% overall impairment. He
also contests the OP Board’s assignment of the remaining 35% impairment to his smoking
history. Mr. Bohall cites syllabus point 1 of Javins v. Workers’ Compensation
Commissioner, 173 W. Va. 747, 320 S.E.2d 119 (1984), which states that

[w]hen conflicting medical evidence is presented concerning the degree of
impairment in an occupational pneumoconiosis claim, that medical evidence
indicating the highest degree of impairment, which is not otherwise shown,
through explicit findings of fact by the Occupational Pneumoconiosis Board,
to be unreliable, incorrect, or clearly attributable to some other identifiable
disease or illness, is presumed to accurately represent the level of pulmonary
impairment attributable to occupational pneumoconiosis.

Id. Mr. Bohall asserts that he established a thirty-seven-year history of occupational
exposure to dust hazards, whereas his smoking history was less. He alleges that Dr. Kinder
and the OP Board incorrectly assigned 35% of the pulmonary impairment to a smoking
history of 0.8 packs of cigarettes per day for thirty-five years instead of the twenty-year
smoking history at the rate of one-half of a pack per day, as it found only three years earlier
in its 2017 testing. Thus, he argues the assignment of more than two-thirds of his overall
impairment to a smoking history was improper. Further, he argues that Dr. Kinder did not
specifically diagnose any disease process to which he attributed the remaining 35%
impairment.

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Mr. Bohall contends the study and findings of Dr. Posin should have been adopted
because he found the highest degree of impairment and considered the smoking history and
the occupational dust exposure. According to Mr. Bohall, Dr. Posin’s recommendation of
30% impairment for OP (after assigning 10% to the smoking history) was reliable and was
more in keeping with his entitlement to the statutory presumption applicable to his case.
Mr. Bohall alleges that the OP Board reduced his award by more than half based upon
“conjecture regarding other diagnoses.” Thus, Mr. Bohall asserts that the evidence weighs
in favor of finding he has experienced a progression of impairment and Dr. Posin found
the highest degree of impairment through his reliable testing.

In reviewing this case, we note that West Virginia Code § 23-4-6a (2005) provides,
in pertinent part:

If an employee is found to be permanently disabled due to
occupational pneumoconiosis, as defined in section one of this article, the
percentage of permanent disability is determined by the degree of medical
impairment that is found by the occupational pneumoconiosis board. The
commission, successor to the commission, other private carrier or self-
insured employer, whichever is applicable, shall enter an order setting forth
the findings of the occupational pneumoconiosis board with regard to
whether the claimant has occupational pneumoconiosis and the degree of
medical impairment, if any, resulting therefrom. That order is the final
decision of the commission for purposes of section one, article five of this
chapter. If a decision is objected to, the office of judges shall affirm the
decision of the Occupational Pneumoconiosis Board made following
hearing unless the decision is clearly wrong in view of the reliable,
probative and substantial evidence on the whole record.

Id. (emphasis added). As stated by the Supreme Court of Appeals in St. Clair v. West
Virginia Office of Insurance Commissioner, No. 20-0535, 2021 WL 4936478, at *3 (W.
Va. Oct. 4, 2021) (memorandum decision), “[t]his Court has long recognized that, pursuant
to the provisions of West Virginia Code §§ 23-4-6a, 23-4-8, and 23-4-8c(d), the
OP Board is to be accorded considerable deference in medical matters. Fenton Art Glass
Co. v. W. Va. Off. of the Ins. Comm'r, 222 W. Va. 420, 664 S.E.2d 761 (2008).”

We are not persuaded by Mr. Bohall’s argument that the OP Board incorrectly
reduced its finding of overall impairment based upon mere “conjecture.” As Dr. Kinder
testified, and as agreed to by Dr. Henry at the hearing before the OOJ on February 2, 2022,
the OP Board reduced the overall impairment it found based upon Mr. Bohall’s smoking
history.
Mr. Bohall notes that his smoking history, as reported in the three pulmonary
function studies, varied. He asserts that the smoking history relied upon by the OP Board

5
resulted in adding fifteen years to his smoking history above the smoking history of twenty
years at one-half of a pack per day found by the OP Board only three years earlier in April
2017. However, at the OOJ hearing, Mr. Bohall did not question the OP Board about the
variances in his smoking history set forth in the various reports. Similarly, Mr. Bohall did
not challenge the OP Board’s testimony that its 2020 study had the “best volumes” or that
the volumes were better in 2020 than in 2017. Mr. Bohall had the burden of questioning
the OP Board if he believed its conclusions rested upon a flawed smoking history. See Syl.
Pt. 3, Rhodes v. Workers’ Comp. Div., 209 W. Va. 8, 543 S.E.2d 289 (2000) (holding West
Virginia Code § 23-4-8c(d) requires party objecting to findings and conclusions of OP
Board to bear burden of questioning OP Board regarding medical evidence it submitted).

In rating the impairment for OP, the OP Board reduced the overall pulmonary
impairment above 15% because of Mr. Bohall’s significant smoking history. Similarly, Dr.
Posin’s report, which Mr. Bohall urges to be adopted by this Court, reduced the overall
impairment finding because of a smoking history characterized as “significant.” Although
Dr. Posin’s reduction of 10% from the overall impairment of 40% represented much less
of a reduction than the amount reduced by the OP Board, it was based on the same reason
that the OP Board reduced the impairment, i.e., a significant smoking history. Thus, Mr.
Bohall cannot argue that it was improper to reduce his impairment based on his significant
smoking history if he wants the Court to rely upon Dr. Posin’s report.

The OP Board’s decision, made at the hearing after reviewing Dr. Posin’s report,
was that Mr. Bohall was fully compensated by his prior 15% PPD award. The OP Board’s
decision is entitled to deference, whereas Dr. Posin’s report is not. The OP Board found
the nonconclusive presumption was rebutted by the smoking history but for 15%
impairment. The Board and the OOJ were not clearly wrong in relying upon the OP Board
findings and testimony. Accordingly, we affirm.

Affirmed.
ISSUED: November 18, 2022

CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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