St. Clair v. West Virginia University - BOR ( 2021 )

FILED
October 4, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JOHN M. ST. CLAIR,
Claimant Below, Petitioner
vs.) No. 20-0535 (BOR Appeal No. 2055242)
(Claim No. 2002005709)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent
and
WEST VIRGINIA UNIVERSITY - BOR,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner John M. St. Clair, by counsel Robert L. Stultz, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). The West Virginia
Office of Insurance Commissioner, by counsel James W. Heslep, filed a timely response.
The issue on appeal is the amount of residual permanent partial disability in the claim.
The claims administrator granted no additional permanent partial disability benefits to Mr. St.
Clair on February 9, 2018. On March 9, 2020, the Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the claims administrator’s decision. This appeal arises from the
Board of Review’s Order dated June 18, 2020, in which the Board affirmed the Order of the
Office of Judges.
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.
1
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 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. St. Clair is a retired electrician with a thirty-three year work history of exposure to
dust. He worked at West Virginia University from October 30, 1990, until he retired in 2011. He
initially applied for benefits related to occupational pneumoconiosis on June 1, 2001. As a result
of the initial claim and subsequent reopening, Mr. St. Clair received a 15% permanent partial
disability award related to occupational pneumoconiosis. 1
Mr. St. Clair filed a petition to reopen his claim on March 30, 2017, based upon
spirometry testing from Stonewall Jackson Memorial Hospital dated March 22, 2017. By Order
of the claims administrator dated April 28, 2017, the request to reopen the claim for
consideration of additional impairment was granted. Mr. St. Clair was referred to the
Occupational Pneumoconiosis Board (“OP Board”) for an evaluation to determine whether he
was entitled to an additional amount of permanent partial disability related to occupational
pneumoconiosis.
1
By Order of the Workers’ Compensation Appeal Board (now Board of Review) dated
January 8, 2004, Mr. St. Clair was granted a 5% permanent partial disability award. He
successfully petitioned to reopen the claim for additional permanent partial disability
consideration and was awarded an additional 5% permanent partial disability award on
September 24, 2010. Subsequently, by an Office of Judges decision dated May 21, 2012, Mr. St.
Clair was granted an additional permanent partial disability award for a total of 15% permanent
partial disability.
2
On December 19, 2017, Mr. St. Clair was evaluated by the OP Board. It was noted that
he had twenty-three years of exposure sufficient to have caused occupational pneumoconiosis or
to have perceptibly aggravated pre-existing occupational pneumoconiosis. For over twenty years,
he has reported shortness of breath, productive chronic cough, and wheezing. A review of Mr. St.
Clair’s spirometry revealed an FVC of 91% pre-bronchodilator; FEV1 of 79% and FEV1/FVC
ratio of 65%. X-rays were compared to previous OP Board films dated January 8, 2002, and July
8, 2010. At the time of his examination, Mr. St. Clair was deemed to be in good general clinical
condition and not in any respiratory distress at rest. The OP Board concluded that there was
sufficient evidence to justify a diagnosis of occupational pneumoconiosis with no more than the
15% pulmonary functional impairment attributed to the disease previously found in his prior
claims. By Order of the claims administrator dated February 9, 2018, Mr. St. Clair was granted
no additional permanent partial disability benefits upon a finding that he had been fully
compensated by his prior award of 15% permanent partial disability. Mr. St. Clair timely
protested the claims administrator’s decision.
In support of his protest, Mr. St. Clair was evaluated by Attila A. Lenkey, M.D, a
pulmonologist at East Ohio Regional Hospital, on February 28, 2019. He underwent spirometry
testing demonstrating an FVC of 4.96 with an FEV1 of 3.11, resulting in an FEV1/FVC ratio of
63%. In the post-bronchodilator phase of his testing at East Ohio, Mr. St. Clair demonstrated no
response to the bronchodilator, showing an FVC of 4.84 and an FEV1 of 3.10, reflecting a ratio
of 64%. 2 Dr. Lenkey found that Mr. St. Clair does have very mild obstructive airway disease
with occasional issues with wheezing. Although his pulmonary functional testing and
FEV1/FVC ratio was slightly decreased, it was approximately the same as it was at his last
evaluation in 2011. In his Final Assessment, Dr. Lenkey concluded that Mr. St. Clair had 15%
impairment overall with chronic bronchitis secondary to longstanding dust exposure.
2
Impairment of pulmonary function, or breathing impairment, is assessed principally
through ventilatory function testing. During this testing, the claimant exhales forcibly into an
instrument called a spirometer. The spirometer records the “[v]olume of air that can be forcefully
exhaled from the lungs after a maximal inspiration,” known as the “forced vital capacity” (FVC),
and the “[v]olume of air that can be exhaled forcefully from the lungs in one (1) second after a
maximal inspiration,” termed the “forced expiratory volume in one (1) second” (FEV1).
Ventilatory function test results are expressed as actual scores and as percentages of “predicted
normal values” (e.g., FVC percent of predicted), which values are derived from a statistical
analysis of persons with “normal” breathing. Once test results are obtained, the degree of
breathing impairment is determined in accordance with the Table for Impairment of Pulmonary
Function (Table 85-1A). West Virginia Code of State Rules § 85-1A-20.8.7. On appeal, Mr. St.
Clair argues that an FEV1/FVC ratio of 64% is equal to a 25% impairment rating when using
Table 20.8.7 of the Table for Impairment of Pulmonary Function.
3
The members of the OP Board appeared and testified at a hearing held on February 5,
2020. Jack L. Kinder, M.D., Chairman, was questioned regarding the OP Board’s testing and that
of EORH’s pulmonary lab. Dr. Kinder testified that the OP Board found no rales or wheezing
during its clinical evaluation, and stated, “[t]he study from East Ohio Regional does have higher
volumes than the Board’s study. After adjustment for supervolume, they represented as much as
20% impairment.” Although Dr. Lenkey recommended 15% impairment, Dr. Kinder testified
about the tracings found in Dr. Lenkey’s study:
“you’ll note that exhalation, there’s several trials that are put together on one
graph. Exhalation will go up to 22, 23 seconds, which will raise the FVC and
make a lower ratio. ATS usually cuts it off around 18 seconds for exhalation to
get a good test. After that, you start getting. . . which is articulations in FVC. I
don’t believe we can accept Dr. Lenkey’s study as being a valid study that makes
a judgment of impairment. I do believe the 15% is correct. And I would stay with
that recommendation.”
Bradley D. Henry, M.D., testified that he agreed with the assessments provided by Dr. Kinder.
During the appellate process, Mr. St. Clair argued that his East Ohio Hospital study is
valid and demonstrates 25% impairment for pulmonary function within rating tables under West
Virginia law. The study notes that he gave “good effort” and “good cooperation” during testing.
Dr. Kinder even testified that the testing performed at East Ohio Hospital provided the highest
volumes in the record. However, Dr. Kinder testified that he felt there were factors indicating
that the East Ohio Hospital study was not a valid representation of Mr. St. Clair’s impairment
because he exhaled too long during testing. Mr. St. Clair maintains that he is being penalized in
his occupational pneumoconiosis claim for doing exactly what he was told to do by pulmonary
technicians; to exhale as hard, fully, and completely as possible. Mr. St. Clair asserts that his
impairment rating and benefit entitlement should not be penalized for having an above-average
lung capacity.
Based upon the OP Board’s findings, as well as the testimony of Dr. Kinder, the Office of
Judges affirmed the claims administrator’s February 9, 2018, Order finding that Mr. St. Clair had
been fully compensated by his prior award of 15% permanent partial disability. The Office of
Judges determined that the pulmonary report from East Ohio Hospital on April 3, 2019, must be
taken with some reservation. Although there was an indication that Mr. St. Clair could have as
much as 20% whole person impairment attributable to pulmonary functional impairment, the
Office of Judges found that even Dr. Lenkey estimated 15% impairment. It was also noted that
the OP Board also testified that it had reservations regarding the reproducibility of the East Ohio
Hospital testing. Because the Office of Judges concluded that the findings of the OP Board have
not been shown to be clearly wrong and are supported by a preponderance of the evidence, the
claims administrator’s Order was affirmed. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed the decision on June 18, 2020.
After review, we agree with the decision of the Office of Judges, as affirmed by the
Board of Review. This Court has long recognized that, pursuant to the provisions of West
4
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). In this case, the OP Board provided clear, unequivocal
testimony that it found no additional whole person impairment attributable to occupational
pneumoconiosis. The Board of Review was not clearly wrong to affirm the finding that Mr. St.
Clair has been fully compensated for permanent partial disability related to this claim.
Affirmed.
ISSUED: October 4, 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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