Harold Cosner v. Consolidation Coal Company ( 2021 )


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  •                                                                                           FILED
    STATE OF WEST VIRGINIA                               September 22, 2021
    EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    SUPREME COURT OF APPEALS                                    OF WEST VIRGINIA
    HAROLD COSNER,
    Claimant Below, Petitioner
    vs.)   No. 20-0416 (BOR Appeal No. 2055042)
    (Claim No. 2012014930)
    CONSOLIDATION COAL COMPANY,
    Employer Below, Respondent
    MEMORANDUM DECISION
    Petitioner Harold Cosner, by Counsel J. Thomas Greene Jr. and T. Colin Greene, appeals
    the decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
    Consolidation Coal Company, by Counsel David K. Liberati, filed a timely response.
    The issue on appeal is permanent partial disability. The claims administrator found that
    Mr. Cosner was fully compensated by his prior 5% award in its October 16, 2018, decision. The
    Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the decision in its January
    13, 2020, Order. The Order was affirmed by the Board of Review on May 27, 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 .
    (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
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    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. Cosner, a retired coal miner, developed occupational pneumoconiosis in the course of
    his thirty-eight years of employment. The Occupational Pneumoconiosis Board (“OP Board”)
    evaluated Mr. Cosner on August 7, 2012, and found that he had no more than 5% impairment due
    to occupational pneumoconiosis. Mr. Cosner was sixty-one and had thirty-eight years of exposure
    to hazardous dust. Chest x-rays were taken and compared to a prior study dated March 13, 1989.
    The OP Board determined that there was a mild degree of nodular fibrosis consistent with
    occupational pneumoconiosis but no pleural plaque formation. On September 18, 2012, the claims
    administrator granted no additional permanent partial disability award, stating that Mr. Cosner was
    fully compensated by a prior 5% award.
    Treatment notes from WVU Medicine indicate Mr. Cosner was seen on May 22, 2013, for
    an abnormal chest CT scan. It was noted that he was a lifelong nonsmoker. Findings were
    consistent with exposure to coal and silica dust. A pulmonary function study showed an
    FEV1/FVC ratio of 75%, an FEV1 of 96%, and an FVC of 84%. He was diagnosed with
    occupational pneumoconiosis with profusion of 2/2 in all zones. On September 19, 2013, a chest
    CT scan showed innumerable centrilobular nodules, most likely due to hypersensitivity
    pneumonitis or bronchiolitis interstitial lung disease if Mr. Cosner was a smoker. On September
    24, 2013, it was noted that a study performed that day showed an FEV1/FVC of 77, an FEV1 of
    99%, and an FVC of 97%. Mr. Cosner was diagnosed with occupational pneumoconiosis that was
    stable. On September 22, 2014, Mr. Cosner underwent another chest CT scan. Innumerable
    centrilobular nodules were again noted. It was also noted that a possible diagnosis was
    occupational pneumoconiosis.
    In a March 28, 2014, Order, the Office of Judges affirmed the September 18, 2012, claims
    administrator decision granting no additional permanent partial disability award. On August 21,
    2017, the claims administrator denied a reopening of the claim for consideration of additional
    permanent partial disability.
    Attila Lenkey, M.D., performed an Occupational Lung Disease Evaluation on February 8,
    2018, and noted that Mr. Cosner smoked cigars for twenty-five years, though he did not use them
    daily. Pulmonary function and blood gas studies were normal, but a diffusion study was borderline
    low, showing 15% impairment. A chest x-ray was interpreted by Jeffrey Unger, M.D., as showing
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    perfusion of 1/1, consistent with occupational pneumoconiosis. The final assessment was 15%
    impairment. On June 1, 2018, the Office of Judges reversed the August 21, 2017, claims
    administrator decision and reopened the claim for consideration of an additional permanent partial
    disability award.
    The OP Board evaluated Mr. Cosner on August 23, 2018, and found that he had no more
    than 5% impairment due to occupational pneumoconiosis. The OP Board noted that Mr. Cosner
    was sixty-seven years old and had thirty-two years of hazardous dust exposure. The OP Board
    reviewed the prior pulmonary function studies of August 23, 2017, and February 8, 2018. It also
    reviewed x-rays taken that day and found simple occupational pneumoconiosis with no pleural
    plaque formation or calcification and no significant change from the prior x-ray. On October 16,
    2018, the claims administrator found Mr. Cosner to be fully compensated by a prior 5% permanent
    partial disability award.
    The OP Board testified in a hearing before the Office of Judges on January 9, 2019. Jack
    Kinder, M.D., testified on behalf of the OP Board that the pulmonary function studies performed
    on August 23, 2018, and February 8, 2018, were normal. Dr. Kinder noted that the February 8,
    2018, diffusion study showed 15% impairment but the OP Board’s August 23, 2018, diffusion
    study was normal. Dr. Kinder stated that the OP Board’s policy is to accept the best study and the
    Board therefore remained of the opinion that Mr. Cosner was fully compensated by his prior 5%
    permanent partial disability award.
    On December 4, 2019, the OP Board testified in a hearing before the Office of Judges. John
    Willis, M.D., testified on behalf of the Board that the 2012 and 2018 x-rays showed nodular
    fibrosis consistent with simple occupational pneumoconiosis. Dr. Kinder also testified on behalf
    of the Board. He stated that though Dr. Lenkey’s February 8, 2018, diffusion study showed 15%
    impairment, the Board’s own study performed six months later indicated only 5% impairment. Dr.
    Kinder stated that the OP Board would rely on the study with the higher diffusion level because
    there would not be improvement in diffusion related to occupational pneumoconiosis. He remained
    of the opinion that Mr. Cosner was fully compensated by his prior 5% award.
    In its January 13, 2020, Order, the Office of Judges affirmed the claims administrator’s
    decision finding Mr. Cosner was fully compensated by his prior 5% permanent partial disability
    award. The Office of Judges concluded that Mr. Cosner failed to prove that the OP Board’s
    findings were clearly wrong. The OP Board testified that though Dr. Lenkey’s February 8, 2018,
    diffusion study showed 15% impairment, the OP Board’s own study conducted six months later
    showed 5% impairment. The Board of Review adopted the findings of fact and conclusions of law
    of the Office of Judges and affirmed its Order on May 27, 2020.
    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 (2019), 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.” A preponderance of the evidence indicates Mr. Cosner has no more
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    than 5% impairment due to occupational pneumoconiosis and has therefore been fully
    compensated by his prior award.
    Affirmed.
    ISSUED: September 22, 2021
    CONCURRED IN BY:
    Chief Justice Evan H. Jenkins
    Justice Elizabeth D. Walker
    Justice Tim Armstead
    Justice John A. Hutchison
    Justice William R. Wooton
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Document Info

Docket Number: 20-0416

Filed Date: 9/22/2021

Precedential Status: Precedential

Modified Date: 9/22/2021