Rockspring Dev., Inc. v. Brown

902 S.E.2d 785

ROCKSPRING DEVELOPMENT, INC., Petitioner,

v.Randy BROWN, Respondent.

No. 22-0135

Supreme Court of Appeals of West Virginia.

Submitted: April 16, 2024

Filed: June 11, 2024

Syllabus by the Court

1. "When reviewing a decision of the West Virginia Workers’ Compensation Board of Review …, this Court will give deference to the Board’s findings of fact and will review de novo its legal conclusions. The decision of the Board may be reversed or modified only if it (1) is in clear violation of a constitutional or statutory provision; (2) is clearly the result of erroneous conclusions of law; or (3) is based upon material findings of fact that are clearly wrong." Syllabus point 1, in part, Moran v. Rosciti Construction Co., LLC, 240 W. Va. 692, 815 S.E.2d 503 (2018).

2. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus point 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).

Appeal from the West Virginia Workers’ Compensation. Board of Review, Claim No. 2016017091, Appeal No. 2057120

Sean Harter, Esq., Scott Depot, West Virginia, Attorney for the Petitioner

J. Robert Weaver, Esq., Maroney, Williams, Weaver & Pancake, PLLC, Charleston, West Virginia, Attorney for the Respondent

BUNN, Justice:

Respondent Randy Brown had previously been granted a 30% permanent partial disability ("PPD") award after contracting occupational pneumoconiosis ("OP"). Mr. Brown later sought an increase in his award and filed a petition to reopen his claim in 2018. The Occupational Pneumoconiosis Board ("OP Board") examined Mr. Brown and determined that sufficient evidence justified an additional 20% impairment for a total impairment rating of 50%. Based upon the OP Board’s findings, the claims administrator granted an additional 20% PPD award.¹ Petitioner Rockspring Development, Inc., ("Rockspring") protested this decision to the West Virginia Workers’ Compensation Office of Judges ("Office of Judges"), which affirmed the claims administrator’s decision. Rockspring then appealed to the West Virginia Workers’ Compensation Board of Review ("Board of Review"). By order dated January 21, 2022, the Board of Review affirmed the Office of Judges’ decision affirming the claims administrator’s decision to grant Mr. Brown an additional 20% PPD, for a total of 50% PPD award.

On appeal to this Court, Rockspring asserts that during the pendency of the claim process, Mr. Brown underwent a bilateral lung transplant and, following the transplant, Mr. Brown’s pulmonary function testing and x-ray reports showed no evidence of OP. Consequently, Rockspring argues that the Board of Review was clearly wrong in affirming the additional 20% PPD award because Mr. Brown no longer has OP or any pulmonary impairment from OP. Under the limited facts and circumstances presented in this case, we disagree and affirm the Board of Review’s additional 20% PPD award.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Brown, a former underground coal miner with over thirty-eight years of coal dust exposure, contracted OP. He applied for workers’ compensation benefits, and, in August 2016, the claims administrator granted him a 30% PPD award based upon his OP. On October 18, 2017, Mr. Brown underwent a pulmonary function study at Vanderbilt University Medical Center ("Vanderbilt"). The interpreting physician diagnosed Mr. Brown with a severe obstructive ventilatory defect, a mild restrictive ventilatory defect, and a moderate gas transfer defect. The study demonstrated that his "flow-volume loop pattern [wa]s consistent with chronic obstructive pulmonary disease." Because the results indicated that his OP had worsened, Mr. Brown subsequently requested that his PPD claim be reopened. The claims administrator referred him to the OP Board for evaluation.

On September 25, 2018, members of the OP Board examined Mr. Brown and certain of his relevant medical records.² The OP Board noted that Mr. Brown had been previously diagnosed with asthma and chronic obstructive pulmonary disease in 2015, and he was treated for pneumonia in 2017. Mr. Brown reported to the OP Board that he had been on a lung transplant list for several years due to progressive massive fibrosis. When comparing September 2018 chest x-ray studies to the OP Board’s previous 2016 x-ray studies, the OP Board determined that Mr. Brown’s lungs showed "nodular fibrosis consistent with [OP] with areas of coalescence in the perihilar regions bilaterally" and that these areas "have increased slightly from previous examination consistent with progressive massive pulmonary fibrosis." The OP Board further relied on the October 2017 Vanderbilt pulmonary function testing, which demonstrated significant impairment.³ Ultimately, the OP Board concluded that sufficient evidence justified an additional 20% impairment rating for Mr. Brown’s diagnosis of OP, for a total of 50% when combined with Mr. Brown’s previous 30% impairment.

On December 6, 2018, the claims administrator granted Mr. Brown an additional 20% PPD award. Rockspring protested this order to the Office of Judges. During the pendency of the protest proceedings, Mr. Brown received a bilateral lung transplant on May 3, 2020.⁴ Following the surgery, Mr. Brown submitted to a pulmonary function study at Vanderbilt on August 3, 2020. The interpreting physician found no obstruction present in Mr. Brown’s lungs. Because the study occurred after Rockspring’s evidentiary development deadline, Rockspring moved the Office of Judges to admit the medical records regarding Mr. Brown’s lung transplant and subsequent testing into evidence. The Office of Judges granted the motion.

At the Office of Judges’ hearing on Rockspring’s protest of the claims administrator’s decision,⁵ radiologist John Willis, M.D., testified on behalf of the OP Board. Dr. Willis testified that he reviewed the August 2020 post-transplant x-ray from Vanderbilt, and opined that Mr. Brown’s lungs looked normal with no evidence of OP.

Next, Jack Kinder, M.D., testified on behalf of the OP Board stating that he agreed with Dr. Willis’s testimony. Dr. Kinder indicated that members of the OP Board examined Mr. Brown in September 2018, and based on that examination, the OP Board recommended an additional 20% impairment for a total of 50% impairment. He opined that the testing conducted by the OP Board in September 2018 was not reproducible and was invalid for determining impairment.⁶ The OP Board, therefore, used the October 2017 Vanderbilt study to determine that Mr. Brown had a total of 50% impairment.

Dr. Kinder testified that he reviewed the August 3, 2020, pulmonary function study from Vanderbilt following Mr. Brown’s bilateral lung transplant. He stated that the August 2020 study represented a normal study for someone post-transplant. While he agreed that the August 2020 study was within normal limits, Dr. Kinder opined that Mr. Brown was nevertheless entitled to a 50% impairment rating. He explained that while Mr. Brown’s lung function was better at the present time, "[i]n a transplant person, 50% of those people are alive at five years …. [T]he symptoms and suffering associated with their lung disease that’s improved by [a] lung transplant, [however,] the overall longevity of someone who has a lung transplant … is still decreased." Dr. Kinder testified that Mr. Brown would be required to take post-transplant medications, which would also affect Mr. Brown for the rest of his life and create an increased risk of several other diseases. Dr. Kinder acknowledged that while he was not a transplant surgeon, he provided care for transplant patients, and he believed that Mr. Brown clinically "still suffers." Dr. Kinder also stated that OP is a permanent disease that does not improve over time. He explained that, in his opinion, the appropriate impairment recommendation should be based upon an individual’s pretransplant status, and Mr. Brown was entitled to an additional 20% impairment for a total of 50% impairment. Finally, Bradley Henry, M.D., testified on behalf of the OP Board and concurred with Drs. Willis and Kinder. Rockspring did not call any physicians to refute the testimony of the members of the OP Board.

After reviewing the evidence, the Office of Judges concluded that the findings and conclusions of the OP Board were not clearly wrong, and on June 28, 2021, it affirmed the claims administrator’s grant of an additional 20% PPD award for a total PPD award of 50%. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its order on January 21, 2022.⁷

II. STANDARD OF REVIEW

[1, 2] This Court’s standard of review in workers’ compensation cases is provided by statute. Pursuant to West Virginia Code § 23-5-15(c) (eff. 2021), we give deference to the Board of Review’s "findings, reasoning, and conclusions[.]" Because the Board of Review’s decision affirms a "prior ruling by both the commission and the Office of Judges[,]" we apply the following criteria:

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.

Id. § 23-5-15(d), in part. This Court has similarly held that

[w]hen reviewing a decision of the West Virginia Workers’ Compensation Board of Review …, this Court will give deference to the Board’s findings of fact and will review de novo its legal conclusions. The decision of the Board may be reversed or modified only if it (1) is in clear violation of a constitutional or statutory provision; (2) is clearly the result of erroneous conclusions of law; or (3) is based upon material findings of

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