Rodger L. Burgess v. American Electric Power Company, Inc. ( 2022 )

FILED
September 19, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
RODGER L. BURGESS,
Claimant Below, Petitioner
vs.) No. 21-0460 (BOR Appeal No. 2056232)
(Claim No. 2013015480)
AMERICAN ELECTRIC POWER COMPANY, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Rodger L. Burgess, by Counsel William C. Gallagher, appeals the decision of
the West Virginia Workers’ Compensation Board of Review (“Board of Review”). American
Electric Power Company, Inc., by Counsel James W. Heslep, filed a timely response.
The issue on appeal is permanent partial disability. On February 5, 2019, the claims
administrator determined that Mr. Burgess was fully compensated by a prior 10% permanent
partial disability award. The Workers’ Compensation Office of Judges (“Office of Judges”)
affirmed the decision in its January 4, 2021, Order. The Order was affirmed by the Board of
Review on May 6, 2021.
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:
(c) 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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(d) 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
reweighing 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. Burgess was exposed to hazardous dust during his forty years of employment as a
power plant employee. On March 26, 2013, he was granted a 10% permanent partial disability
award due to occupational pneumoconiosis. Mr. Burgess retired in September of 2005.
Pulmonary function studies performed at East Ohio Regional Hospital on February 27,
2018, showed a prebronchodilator forced vital capacity (“FVC”) of 93% of predicted and a
postbronchodilator FVC that was 85% of predicted. 1 Prebronchodilator forced expiratory volume
in one second (“FEV1”) was 74% of predicted and postbronchodilator was 67% of predicted. 2 The
FEV1/FVC ratio was 57% both pre and postbronchodilator. 3 DCLO 4 was 42% of predicted and
DL/VA 5 was 81% of predicted. Blood gas studies showed a partial pressure of carbon dioxide
(“PCO2”) 6 of 43.2 and a partial pressure of oxygen (“PO2”) 7 of 76.8. Based on the studies, Attila
Lenkey, M.D., performed an occupational lung disease evaluation that day in which Mr. Burgess
reported an occasional cough and wheezing. He stated that he smoked off and on for twenty years.
Dr. Lenkey noted a significant history of exposure to dust, asbestos, coal dust, silica, solvents,
clay, sand, and diesel. Based on the pulmonary function study, Dr. Lenkey opined that Mr.
Burgess’s impairment had progressed due to his occupationally caused chronic obstructive
pulmonary disease. He found 40% impairment and noted that a claimant can suffer from significant
1
FVC is the volume of air that can be forcefully exhaled from the lungs after a maximal
inspiration. See West Virginia Code of State Rules § 85-20-52.9(d)(1).
2
FEV1 is the volume of air that can be exhaled forcefully from the lungs in one second
after a maximal inspiration. See West Virginia Code of State Rules § 85-20-52.9(d)(2).
3
FEV1/FVC refers to the forced expiratory volume (timed) to forced expiratory volume,
which is expressed as a percentage. See West Virginia Code of State Rules § 85-20-52.9(d)(4).
4
DLCO is the carbon monoxide diffusion capacity of the lungs. See West Virginia Code of
State Rules § 85-20-52.9(d)(14).
5
DL/VA refers to the carbon monoxide diffusing capacity of the lungs per unit of alveolar
volume. See West Virginia Code of State Rules § 85-20-52.9(d)(15).
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PCO2
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PO2
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lung disease despite having a normal looking x-ray. A March 8, 2018, chest x-ray showed no
evidence of occupational pneumoconiosis.
Pulmonary function studies performed at the Occupational Lung Center on December 11,
2018, indicate Mr. Burgess smoked a third of a pack of cigarettes a day for five years but quit
smoking twenty years prior. Prebronchodilator FVC was 80% of predicted and postbronchodilator
FVC was 85% of predicted. Prebronchodilator FEV1 was 78% of predicted and postbronchodilator
was 77%. The FEV1/FVC ratio was 70 prebronchodilator and 65 postbronchodilator. Diffusion
studies showed a DCLO of 73% of predicted and DL/VA was 89% of predicted. The
carboxyhemoglobin was 1.5.
The Occupational Pneumoconiosis Board’s December 11, 2018, findings indicate Mr.
Burgess was previously granted a 10% permanent partial disability award. Mr. Burgess was
seventy-two and had a forty year history of occupational dust exposure. Examination showed harsh
breath sounds and wheezing in both lungs. X-rays showed insufficient evidence to establish a
diagnosis of occupational pneumoconiosis. The Occupational Pneumoconiosis Board found that
Mr. Burgess was fully compensated by his prior permanent partial disability award. On February
5, 2019, the claims administrator determined that Mr. Burgess was fully compensated by a prior
10% permanent partial disability award.
Jack Willis, M.D., testified in a July 17, 2019, initial hearing on behalf of the Occupational
Pneumoconiosis Board that he reviewed three x-rays of Mr. Burgess’s chest from 2013, 2016, and
2018. He saw no evidence of occupational pneumoconiosis but did see mild hyperinflation which
suggests chronic obstructive pulmonary disease. Dr. Willis stated that mild hyperinflation is most
often caused by cigarette smoking and is not associated with occupational pneumoconiosis. Jack
Kinder, M.D., also of the Occupational Pneumoconiosis Board, testified that Mr. Burgess’s
pulmonary testing performed at East Ohio Regional Medical Center showed impairment above
10%; however, the studies were not accurate. Dr. Kinder stated that Mr. Burgess exhaled for over
twenty seconds during the test, causing an artificially elevated FVC. Testing usually cuts off
between sixteen and eighteen seconds. Dr. Kinder further testified that physical examination of
Mr. Burgess showed harsh breath sounds, which is consistent with bronchospastic disease caused
by smoking. He also noted that Mr. Burgess’s chest x-rays were negative for occupational
pneumoconiosis. Dr. Kinder opined that the pulmonary studies taken on December 11, 2018, were
valid and showed no more than 10% permanent partial disability. Mallinath Kayi, M.D., also of
the Occupational Pneumoconiosis Board, concurred that the December 11, 2018, pulmonary
testing was valid and that Mr. Burgess was fully compensated by his prior 10% permanent partial
disability award.
The Occupational Pneumoconiosis Board testified in a final hearing on November 4, 2020,
that its opinion remained unchanged. Dr. Kinder again opined that the East Ohio Regional Medical
Center pulmonary testing was unreliable because Mr. Burgess was allowed to exhale for twenty-
two seconds, creating an artificially lowered ratio. Dr. Kinder also stated that Mr. Burgess’s
volumes showed an increase since his 2016 studies, which was unlikely due to his age. Bradley
Henry, M.D., also of the Occupational Pneumoconiosis Board, agreed with Dr. Kinder. He testified
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that the East Ohio Regional Medical Center study was inaccurate and opined that Mr. Burgess was
fully compensated by his prior 10% permanent partial disability award.
In a January 4, 2021, Order, the Office of Judges affirmed the claims administrator’s
decision finding that Mr. Burgess was fully compensated by his prior 10% permanent partial
disability award. It noted that the Occupational Pneumoconiosis Board’s findings are usually based
on the spirometry studies that show the greatest flow. However, the Occupational Pneumoconiosis
Board testified that the East Ohio Regional spirometry studies, which showed the highest flow,
were invalid because Mr. Burgess was allowed to exhale for too long. This affected the ratio
findings and resulted in an inaccurate assessment of Mr. Burgess’s impairment. The Occupational
Pneumoconiosis Board concluded that the pulmonary function studies performed at the
Occupational Lung Center on December 11, 2018, were the most reliable of record and showed
no impairment above 10%. The Office of Judges concluded that the claims administrator was
correct to find that Mr. Burgess was fully compensated by his prior 10% permanent partial
disability award. The Board of Review adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on May 6, 2021.
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 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.” Mr. Burgess has failed to submit sufficient evidence to show that the
Occupational Pneumoconiosis Board’s opinion is clearly wrong.
Affirmed.
ISSUED: September 19, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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