Full Opinion (html_with_citations)

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

                                                                             FILED
DONALD LILLY,                                                           December 27, 2023
Claimant Below, Petitioner                                                EDYTHE NASH GAISER, CLERK
                                                                        INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-346         (JCN: 2022004250)                                  OF WEST VIRGINIA




ALPHA METALLURGICAL RESOURCES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION

       Petitioner Donald Lilly appeals the July 27, 2023, order of the Workers’
Compensation Board of Review (“Board”). Respondent Alpha Metallurgical Resources,
Inc. (“Alpha”) filed a response. 1 Mr. Lilly did not file a reply. The issue on appeal is
whether the Board erred in reversing the claim administrator’s order, which granted Mr.
Lilly a 10% permanent partial disability (“PPD”) award and instead granting him a 0%
PPD award.

       This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

       On August 9, 2021, Mr. Lilly submitted an Employee’s Report of Occupational
Pneumoconiosis, documenting that he was exposed to occupational dust hazards during his
employment from October 6, 1993, through June 4, 2020. A Physician’s Report of
Occupational Pneumoconiosis was signed by Daniel Doyle, M.D., on the same date, and
documented that Mr. Lilly had a diagnosed impairment due to occupational
pneumoconiosis (“OP”). Mr. Lilly previously underwent a chest x-ray on July 1, 2021,
revealing simple pneumoconiosis category “s/p 0/1,” with right and left peripheral pleural
thickening. Dr. Doyle noted that Mr. Lilly’s spirometry study performed on July 1, 2021,
was normal, and the valid DLCO represented a mild reduction in diffusion.

       The claim administrator issued an order dated September 2, 2021, which held the
claim compensable for OP on a nonmedical basis and noted that Mr. Lilly was entitled to

       1
        Mr. Lilly is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
Alpha is represented by Alysia Kozlowski, Esq.

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the presumption that any chronic respiratory disability resulted from his employment. In
the OP Board’s findings dated February 8, 2022, the OP Board opined that Mr. Lilly had a
diagnosis of OP with a 10% pulmonary functional impairment. The OP Board found that
Mr. Lilly had been exposed to an occupational dust hazard for 39 years with sufficient
exposure to have caused OP or to have perceptibly aggravated preexisting OP. The claim
administrator issued an order dated April 13, 2022, which awarded Mr. Lilly 10% PPD
based on the OP Board’s findings. Both parties protested the claim administrator’s order.

        On June 7, 2023, the OP Board testified at a final hearing regarding their findings.
The OP Board testified that it examined Mr. Lilly on February 8, 2022, and that the
diffusion and spirometry studies were valid and reproducible. The OP Board stated that
Mr. Lilly’s carboxyhemoglobin and hemoglobin levels were within normal limits on that
date, and that the testing revealed 10% impairment. Jack L. Kinder, M.D., chairman of the
OP Board, testified that a diffusion study from April revealed a 10% impairment as well.
Dr. Kinder indicated that the diffusion study dated August 24, 2022, had an abnormal
carboxyhemoglobin level, revealing that Mr. Lilly is anemic. According to Dr. Kinder, the
August 24, 2022, diffusion study represented the best study of record. Dr. Kinder testified
that the OP Board does not generally adjust for having too much blood, but it is common
for the OP Board to adjust for anemia. Dr. Kinder explained that anemia affects a person’s
oxygen carrying capacity. The OP Board testified that, after adjusting for the abnormal
hemoglobin level, Mr. Lilly’s impairment related to OP was 0%.

       On July 27, 2023, the Board issued an order reversing the claim administrator’s
order, which granted Mr. Lilly a 10% PPD award, instead granting him a 0% PPD award.
The Board found that the OP Board was not clearly wrong in concluding that Mr. Lilly had
0% impairment related to OP. Mr. Lilly now appeals the Board’s order.

        Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

       The Intermediate Court of Appeals may affirm the order or decision of the
       Workers’ Compensation Board of Review or remand the case for further
       proceedings. It shall reverse, vacate, or modify the order or decision of the
       Workers’ Compensation Board of Review, if the substantial rights of the
       petitioner or petitioners have been prejudiced because the Board of Review’s
       findings are:
       (1) In violation of statutory provisions;
       (2) In excess of the statutory authority or jurisdiction of the Board of Review;
       (3) Made upon unlawful procedures;
       (4) Affected by other error of law;
       (5) Clearly wrong in view of the reliable, probative, and substantial evidence
       on the whole record; or


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       (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n,
247 W. Va. 550
, 555,
882 S.E.2d 916
, 921 (Ct. App.
2022).

       On appeal, Mr. Lilly argues that the preponderance of the evidence establishes that
he has more than 0% impairment due to OP. Mr. Lilly underwent testing with results that
were valid and reproducible, revealing 10% impairment related to OP. For this reason, he
argues that the Board should have found that the OP Board’s findings were clearly wrong
based on the medical evidence. We disagree.

       In Rhodes v. Workers’ Comp. Div.,
209 W. Va. 8, 17
,
543 S.E.2d 289, 298
 (2000),
the Supreme Court of Appeals of West Virginia held that the party protesting the findings
of the OP Board has the burden to establish that the OP Board was clearly wrong.

       Here, the Board found that the OP Board was not clearly wrong, and, therefore,
found that Mr. Lilly had 0% impairment related to OP. 2

       Upon review, we conclude that Mr. Lilly has failed to meet his burden of
establishing that the OP Board was clearly wrong and, therefore, we cannot conclude that
the Board erred in adopting the OP Board's recommendation. Further, we note that Mr.
Lilly failed to cite any medical authority indicating that the OP Board should not have
adjusted the impairment rating due to anemia. Thus, we find that the Board did not err in
finding that Mr. Lilly has 0% impairment due to OP when adjusted for anemia.

       Accordingly, we affirm the Board’s July 27, 2023, order.


                                                                                Affirmed.

ISSUED: December 27, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge Thomas E. Scarr

       2
         The Board’s July 27, 2023, order lacked adequate analysis of the parties’
arguments and the OP Board’s findings; however, this Court agrees with the Board that
Mr. Lilly has failed to establish that the OP Board’s findings are clearly wrong in the instant
case.
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