Danny W. Beasley v. WVOIC/Spartan Mining Company ( 2022 )

FILED
February 25, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
DANNY W. BEASLEY,
Claimant Below, Petitioner
vs.) No. 20-0720 (BOR Appeal No. 2054861)
(Claim No. 2015015488)
SPARTAN MINING COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Danny W. Beasley, by Counsel Patrick K. Maroney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Spartan Mining
Company, by Counsel Sean Harter, filed a timely response.
The issue on appeal is permanent partial disability due to occupational noise-induced
hearing loss. The claims administrator granted no permanent partial disability award on November
2, 2018. The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the decision
in its November 8, 2019, Order. The Order was affirmed by the Board of Review on August 18,
2020.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning and conclusions.
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(c) If the decision of the board represents an affirmation of a prior ruling by
both the commission and the office of judges that was entered on the same issue in
the same claim, the decision of the board may be reversed or modified by the
Supreme Court of Appeals only if the decision is in clear violation of Constitutional
or statutory provision, is clearly the result of erroneous conclusions of law, or is
based upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo re-
weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Beasley, a block foreman in a coal mine, completed a Report of Occupational Hearing
Loss on November 17, 2014, in which he stated that his date of last exposure to loud noise was
August 27, 2014. He retired on September 2, 2014. Mr. Beasley stated that he was exposed to
equipment noise from 1970 through 2014. He was first made aware of a noise-induced hearing
loss in 1999. The physician’s section was completed by P.C. Corro, M.D. Dr. Corro found that
Mr. Beasley had bilateral sensorineural hearing loss due to industrial noise exposure. He found
9.35% impairment based on high tone sensorineural hearing loss with a history of noise exposure.
David Phillips, M.D., performed a hearing loss evaluation on February 27, 2015, in which
he found that an audiogram showed mild sloping to moderate high frequency hearing loss, worse
in the right ear. Dr. Phillips compared the testing to an audiogram performed by Randy Walker,
Au.D., on November 17, 2014. Dr. Phillips found significant variation between the tests at all
frequencies and opined that the two tests differed so significantly that they are beyond the test-
retest threshold of fifteen decibels. Dr. Phillips opined that if he were to calculate whole person
impairment, he would have to use the bone conduction thresholds because Mr. Beasley has
evidence of middle ear disease and conductive hearing loss, which is not attributable to
occupational noise exposure. It was noted that Mr. Beasley’s asymmetrical hearing loss could be
attributed to his report of asymmetrical occupational noise exposure. Dr. Phillips found 0% whole
person impairment due to occupational hearing loss. The claims administrator granted no
permanent partial disability award for occupational hearing loss on March 17, 2015.
Mr. Beasley testified in a June 11, 2015, deposition that he worked in the coal mines from
the time he was nineteen until he retired. Mr. Beasley stated that he hunted one week a year and
used power tools briefly once every two to three months. Mr. Beasley testified that he noticed his
hearing loss three years prior and that it was mostly in the left ear. Mr. Beasley stated that he did
not use ear protection for occupational or nonoccupational noise exposure. In an August 3, 2016,
Order, the Office of Judges reversed the March 17, 2015, claims administrator decision and
remanded the claim for further audiometric testing.
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In a November 17, 2016, hearing loss evaluation, Joseph Touma, M.D., diagnosed Mr.
Beasley with noise effects on the inner ear bilaterally and mixed conductive sensorineural
unspecified. It was noted that the audiogram performed that day was questionable. It showed
bilateral sensorineural hearing loss with some additional loss in the left ear due to sclerotic
changes. He found 7.75% whole person impairment attributable to noise exposure.
On March 9, 2017, Dr. Phillips wrote a letter in which he opined that three audiograms had
been performed in the claim and none were within the range of test-retest viability. In the most
recent audiogram, performed by Dr. Touma, Mr. Beasley was found to have 7.75% impairment
based on four frequency totals of 175 decibels in the right ear and 260 in the left. In his February
27, 2015, audiogram, Dr. Phillips found ninety-five decibels in the right ear and 155 in the left ear.
Dr. Phillips noted that Dr. Touma’s audiogram was listed as fair and that it was noted on the test
that it was questionable. Dr. Phillips opined that Dr. Touma’s evaluation was not reliable. He
asserted that his February 27, 2015, hearing loss evaluation was the most reliable assessment of
Mr. Beasley’s hearing loss impairment, which was 0%. On June 21, 2017, the claims administrator
granted no permanent partial disability award for noise-induced hearing loss based on Dr.
Phillips’s March 9, 2017, letter. The Office of Judges reversed the June 21, 2017, claims
administrator decision and remanded the claim for further audiometric testing on July 17, 2018.
Stephen Wetmore, M.D., performed a hearing loss evaluation on October 15, 2018, in
which he reviewed the three audiograms of record. An audiogram was also performed in his office
that day. He noted that Mr. Beasley’s testing showed more hearing loss in the low tones than would
be expected in a case of occupational noise exposure. Dr. Wetmore stated that Mr. Beasley’s
testing showed an air/bone gap that could be due to the stiff nature of Mr. Beasley’s tympanic
membranes. Dr. Wetmore opined that Mr. Beasley shows significant bilateral hearing loss but has
mixed hearing loss compatible with stiff tympanic membranes. Dr. Wetmore opined that Mr.
Beasley’s hearing loss was not the result of occupational noise exposure due to the large low
frequency hearing loss compared to the high frequency loss. He assessed 0% impairment for
occupational noise exposure. Based on Dr. Wetmore’s evaluation, the claims administrator granted
no permanent partial disability award for noise-induced hearing loss on November 2, 2018.
The Office of Judges affirmed the claims administrator’s decision granting no permanent
partial disability award for noise-induced hearing loss in its November 8, 2019, Order. The Office
of Judges concluded that the findings of Drs. Phillips and Wetmore are the most reliable of record.
Dr. Phillips found evidence of middle ear disease and conductive hearing loss that is not
attributable to occupational noise exposure and assessed 0% impairment. Dr. Phillips opined that
Dr. Touma’s audiogram was of fair reliability, and it was noted on the test that the results were
questionable. Dr. Phillips stated that Dr. Touma’s results were less reliable than the result obtained
by his office on February 27, 2015. Further, Dr. Corro’s evaluation was found to be beyond the
test-retest viability. The Office of Judges noted that Dr. Wetmore found in his evaluation that Mr.
Beasley has an air/bone gap indicative of stiff tympanic membranes. He opined that Mr. Beasley’s
hearing loss is not the result of occupational noise exposure. He also assessed 0% impairment. The
Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and
affirmed its Order on August 18, 2020.
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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. The most reliable reports of record are those of Drs. Phillips and
Wetmore, both of whom opined that Mr. Beasley has 0% impairment due to noise-induced hearing
loss.
Affirmed.
ISSUED: February 25, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats, sitting by temporary assignment.
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