Johnny R. Hendrick v. W. Va. Office of Insurance Commissioner/City of Oak Hill

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED
March 14, 2013

RORY L. PERRY II, CLERK

JOHNNY R. HENDRICK, SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Claimant Below, Petitioner

vs.) No. 11-0886 (BOR Appeal No. 2045260)
(Claim No. 2009055436)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CITY OF OAK HILL,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Johnny R. Hendrick, by Reginald D. Henry, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. The City of Oak Hill, by
William T. Brotherton III, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated May 6, 2011, in which
the Board affirmed a November 9, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s October 6, 2009, decision
granting Mr. Hendrick no additional permanent partial disability award for occupational
pneumoconiosis. 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.

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 Mr. Hendrick worked for the City of Oak Hill as a mechanic. The claim was held
compensable for occupational pneumoconiosis based upon the statutory presumption, and he
received a 10% permanent partial disability award in 2005. On October 6, 2009, the claims
administrator granted Mr. Hendrick no additional permanent partial disability award based upon
the Occupational Pneumoconiosis Board’s findings.

The Office of Judges held that the preponderance of the evidence did not establish that
Mr. Hendrick is entitled to an additional permanent partial disability award due to occupational
pneumoconiosis. On appeal, Mr. Hendrick disagrees and asserts that the Board of Review was
clearly wrong to conclude that he had no more than 10% impairment attributable to occupational
pneumoconiosis. The City of Oak Hill maintains that the Occupational Pneumoconiosis Board
was correct in finding that Mr. Hendrick suffers from no more than 10% impairment due to
occupational pneumoconiosis.

Under West Virginia Code § 23-4-6a (2005), “the Office of Judges shall affirm the
decision of the Occupational Pneumoconiosis Board made following hearing unless the decision
is clearly wrong in view of the reliable, probative and substantial evidence on the whole record.”
Here, the Occupational Pneumoconiosis Board concluded that Mr. Hendrick had no more than
10% impairment due to occupational exposure. The Office of Judges noted that the Occupational
Pneumoconiosis Board considered Dr. Rasmussen’s findings and opinion, along with Mr.
Hendrick’s work history, smoking history, objective findings, and radiographic findings in
determining his impairment. The Office of Judges concluded that the Occupational
Pneumoconiosis Board’s findings were not clearly wrong. The Board of Review reached the
same reasoned conclusions in its decision of May 6, 2011. 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: March 14, 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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