Freddie Browning v. Brayman Construction ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS June 27, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
FREDDIE BROWNING, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 14-0031 (BOR Appeal No. 2048321)
(Claim No. 2011015218)
BRAYMAN CONSTRUCTION,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Freddie Browning, by Wendle D. Cook, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Brayman Construction, by Lisa
Warner Hunter, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated December 12, 2013, in
which the Board affirmed an April 17, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 26, 2012,
decision granting Mr. Browning a 0% permanent partial disability award for occupational
hearing loss. The Court has carefully reviewed the records, written arguments, and appendices
contained in the briefs, and the case is mature for consideration.
This Court has considered the parties’ briefs and the record on appeal. 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.
Mr. Browning worked as a construction worker for Brayman Construction. On
September 23, 2010, after he stopped working, Mr. Browning filed an application for workers’
compensation benefits based on hearing loss. Four months later, Mr. Browning filed a second
application based on hearing loss. Mr. Browning alleged that he had been exposed to noise from
dump trucks, jackhammers, and other heavy equipment while he worked for Brayman
Construction. Attached to his second application was a report of an audiogram performed by
Tom Waybright, CCC-A, which showed bilateral hearing loss with an ascending audiometric
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pattern. Mr. Waybright, furthermore, did not provide a reliability rating for the audiometric
testing which served as the basis of his report. Mr. Browning’s application also included a report
from Charles Abraham, M.D., who found that he had 7.3% whole person impairment related to
his occupation based on Mr. Waybright’s audiogram. Marlene B. Mowery, O.D., CCC-A, then
performed an audiogram on Mr. Browning. She rated the reliability of the audiometric testing as
good. David Phillips, M.D., then evaluated Mr. Browning based on Dr. Mowery’s audiogram.
He found that Mr. Browning had bilateral hearing loss which was worse in the left ear. Dr.
Phillips determined that Mr. Browning’s asymmetric hearing loss could not be explained by
occupational factors. Dr. Phillips also found that he had an ascending hearing loss pattern which
was not typical in occupational hearing loss claims. Dr. Phillips calculated that Mr. Browning
had 0% whole person impairment related to his occupation. On March 26, 2012, the claims
administrator granted Mr. Browning a 0% permanent partial disability award. On April 17, 2013,
the Office of Judges affirmed the claims administrator’s decision. The Board of Review affirmed
the Order of the Office of Judges on December 12, 2013, leading Mr. Browning to appeal.
The Office of Judges concluded that Dr. Phillips’s report provided the most accurate and
reliable assessment of Mr. Browning’s whole person impairment related to hearing loss. The
Office of Judges determined that Dr. Phillips’s impairment assessment was based on an
audiogram which met the reliability checks of West Virginia Code of State Rules § 85-20-47.4
(2006). The Office of Judges also considered the recommendation of Dr. Abraham, but it
determined that his assessment could not be relied upon because the audiogram he used did not
include a requisite reliability rating. The Office of Judges further determined that West Virginia
Code of State Rules § 85-20-47.3(a) did not necessitate that a third impairment evaluation be
performed because there was only one audiogram in the record that had a good reliability rating.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order.
We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Mr. Browning has not demonstrated that he is entitled to any permanent partial disability
award related to his hearing loss. The Office of Judges was within its discretion in relying on Dr.
Phillips’s impairment recommendation. His impairment recommendation was based on Dr.
Mowery’s audiogram, which complied with the requirements of West Virginia Code of State
Rules § 85-20-47. There is nothing in the record undermining the credibility of Dr. Phillips’s
report. Dr. Abraham, in comparison, did not provide a reliable assessment of Mr. Browning’s
impairment. West Virginia Code of State Rules § 85-20-47.8 indicates that Mr. Browning’s
ascending audiometric and asymmetric hearing loss patterns are not typical in occupational
hearing loss cases. Dr. Abraham did not sufficiently relate Mr. Browning’s impairment to his
occupation in light of his atypical hearing loss.
For 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, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.
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Affirmed.
ISSUED: June 27, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II
DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum
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