STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
JOHN L. MCGEE, November 20, 2013
RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 12-0277 (BOR Appeal No. 2046359)
(Claim No. 2003000044)
CONSOLIDATION COAL COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner John L. McGee, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Consolidation Coal Company, by
Edward M. George III, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated February 2, 2012, in
which the Board affirmed a August 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 1, 2009,
Order granting Mr. McGee a 0% permanent partial disability award. 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. McGee was employed as a coal miner for thirty years working for Consolidation
Coal Company. Mr. McGee filed a workers’ compensation claim that was held compensable for
occupational asthma. The claims administrator relied on the Occupational Pneumoconiosis
Board’s findings that Mr. McGee had no impairment attributable to his employment and granted
him a 0% permanent partial disability award.
The Office of Judges concluded that Mr. McGee has no pulmonary impairment
attributable to his employment and no impairment due to occupational asthma, and therefore, he
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is not entitled to a permanent partial disability award. Mr. McGee disagrees and asserts that his
claim was held compensable for occupational asthma and that based on the report of Dr. Saludes,
he is entitled to a 5% permanent partial disability award. Consolidation Coal Company argues
that Mr. McGee has failed to adequately refute the findings of the Occupational Pneumoconiosis
Board, which found no impairment attributable to his employment. Dr. Early, who treated Mr.
McGee from 2003 through 2006, concluded that he suffered from chronic obstructive pulmonary
disease, heart disease, and black lung. On April 13, 2004, Dr. Jin reported that she found no
evidence that Mr. McGee had asthma. On July 6, 2004, Dr. Bellotte diagnosed Mr. McGee with
asthma. On April 8, 2009, Dr. Saludes diagnosed Mr. McGee with coal workers’
pneumoconiosis and chemical induced occupational asthma. On June 15, 2011, the physicians of
the Occupational Pneumoconiosis Board testified that Mr. McGee had cardiomyopathy that was
not caused by his occupation. The Occupational Pneumoconiosis Board found no evidence of
pulmonary function impairment attributable to Mr. McGee’s employment and recommended that
no permanent partial disability award be granted.
The Office of Judges noted that the Occupation Pneumoconiosis Board found that Mr.
McGee did not have any impairment attributable to his employment based on the reliable studies
in the record. The Office of Judges found that the Occupational Pneumoconiosis Board observed
normal pulmonary function studies on August 13, 2007, at East Ohio Regional Hospital. It
further found that the studies performed for the Occupational Pneumoconiosis Board showed that
on August 11, 2009, Mr. McGee’s blood gas studies were normal. The Office of Judges held that
Mr. McGee had no pulmonary impairment attributable to his employment and that he was not
entitled to a permanent partial disability award. The Board of Review reached the same reasoned
conclusions in its decision of February 2, 2012. We agree with the reasoning and conclusions of
the Board of Review.
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.
Affirmed.
ISSUED: November 20, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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