John M. White III v. WVOIC/Caterpillar Global Mining, LLC

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

JOHN M. WHITE, FILED
Claimant Below, Petitioner April 25, 2019
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
vs.) No. 18-0613 (BOR Appeal No. 2052554) OF WEST VIRGINIA

(Claim No. 2014031816)

CATERPILLAR GLOBAL MINING, LLC,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner John White, by John H. Shumate, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Caterpillar Global Mining, LLC, by
Cameron Blair, its attorney, filed a timely response.

The issue on appeal is the percentage of permanent impairment related to occupational
pneumoconiosis. The claims administrator granted Mr. White no additional award for
occupational pneumoconiosis on August 11, 2015. The Workers’ Compensation Office of Judges
affirmed the claims administrator’s Order on February 6, 2018. This appeal arises from the
Board of Review’s Final Order dated June 11, 2018, in which the Board affirmed the Final Order
of the Office of Judges.

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. White has 32 years of exposure to dust as a plant worker/fabrication foreman and
eleven years as a mine construction worker. Most recently, Mr. White worked as a shop foreman
for Caterpillar Global Mining, LLC. He worked for that particular facility, which had been
operated by various employers, until he filed for benefits on May 8, 2014. He had previously
filed a workers’ compensation claim for occupational pneumoconiosis against Southern
Fabricators in Claim. No. 9900008979. In that claim, Mr. White was granted a 10% permanent
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partial disability award on February 22, 1999. The claims administrator rejected Mr. White’s
claim for failing to meet the requirements of compensability. Mr. White protested. On appeal, the
Office of Judges issued a Final Order dated February 24, 2015, which reversed the rejection of
the claim by the claims administrator. The Office of Judges concluded that Mr. White has
sufficient exposure to the hazards of breathing abnormal quantities of dust to give the claims
administrator jurisdiction to consider the claim.

The Occupational Pneumoconiosis Board issued a report dated June 4, 2015, finding
sufficient evidence to justify a diagnosis of occupational pneumoconiosis with no more than the
10% pulmonary functional impairment attributable to the disease previously found in Claim No.
9900008979. The Board’s decision was based upon Mr. White’s physical examination,
pulmonary function studies conducted for the Board and x-rays of his chest. The Board found
that Mr. White reported experiencing shortness of breath for 25 years, and a mild productive
cough for 15 years. He noted wheezing for 20 years, and he was treated for pneumonia in 1990.
Mr. White was diagnosed with chronic obstructive pulmonary disease in 2010. He also has a
history of a left pneumothorax which was found in 1997. Chest x-rays did not show sufficient
pleural or parenchymal changes to establish a diagnosis of occupational pneumoconiosis.

Based upon the findings of the Occupational Pneumoconiosis Board, the claims
administrator issued an Order on August 11, 2015, stating that Mr. White is entitled to an award
of no more than 10% permanent partial disability, the same as was previously awarded under
Claim No. 9900008979. Because he was granted a 10% award under that claim, the claims
administrator stated that Mr. White would not be receiving any additional permanent partial
disability benefits. Mr. White protested the claims administrator’s decision.

In support of his protest, Mr. White submitted a January 6, 2016, report from New River
Health, noting that he underwent spirometry, lung volume and diffusion studies during the
testing process. The highest FEV1 and FVC results from the study were 57% and 66% of their
predicted normal value. The highest FEV1/FVC measurement was 68%. The interpretation noted
pre-testing results as severe obstructive, and moderately restrictive breathing. The post-testing
report indicated moderately obstructive, and moderately restrictive breathing with significant
improvement. FEV lung volumes were normal and consistent with pseudo restriction.

The Occupational Pneumoconiosis Board (“OP Board”) conducted a hearing on June 15,
2016, where the OP Board reviewed the medical evidence noting that the New River Health
pulmonary function studies of January 6, 2016, showed 10% impairment. Mr. White was found
to have a history of atrial fibrillation and a left pneumothorax. He also had a 20-year smoking
history, which he ceased 20 years prior to his examination. The post-bronchodilator study on
June 4, 2015, revealed about 10% impairment. There was a 16% improvement in his FVC and a
17% improvement in his FEV1, which is significant for a diagnosis of bronchospastic disease.
There was no x-ray evidence of occupational pneumoconiosis. The Occupational
Pneumoconiosis Board remained of the opinion that Mr. White has 10% impairment attributable
to occupational pneumoconiosis for which he had been compensated previously.

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 On July 14, 2016, the Office of Judges affirmed the claims administrator’s decision. On
December 7, 2016, the Board of Review remanded the claim with instructions to issue a new
time frame to allow the parties to develop and submit additional evidence and to schedule a new
OP Board hearing.

On February 24, 2017, George L. Zaldivar, M.D., issued an independent medical
evaluation report that concluded that there is evidence to justify a diagnosis of pneumoconiosis.
Dr. Zaldivar opined that Mr. White does not have radiographic pneumoconiosis. Instead, his
pulmonary impairment is the result of smoking and asthma, unrelated to his occupation. From a
pulmonary standpoint, Dr. Zaldivar stated that 10% impairment would be reasonable using prior
spirometric criteria. However, Dr. Zaldivar was of the opinion that there is no impairment at all
related to Mr. White’s employment, and he concluded that any percentage of impairment
previously awarded was due to asthma/chronic obstructive pulmonary disorder caused by
smoking and unrelated to his unemployment.

The OP Board conducted another hearing on January 3, 2018. The Board reviewed the
report from Dr. Zaldivar and the other documents related to the New River Health studies that
found an overall impairment of 10%. Dr. Kinder opined there is an overall impairment of 15%.
However, given Mr. White’s mild wheezing and smoking history, he thought that the 10%
previously recommended is appropriate. The remaining 5% impairment was attributed to
smoking and Mr. White’s non-occupational bronchospastic disease. The OP Board concluded
that Mr. White has 10% impairment attributable to his compensable conditions.

Based upon the OP Board’s recommendation, the Office of Judges affirmed the August
11, 2015, Order of the claims administrator. The Office of Judges concluded that Mr. White has
no more than 10% whole person impairment for which he has been compensated. The Board of
Review affirmed the decision of the Office of Judges in an Order dated June 11, 2018. Mr. White
appealed the Board’s decision to this Court.

After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. There is no objective medical evidence of record in this claim
to establish that Mr. White suffers from additional impairment due to occupational
pneumoconiosis.

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: April 25, 2019

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CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

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