CHARLESTON – The state Supreme Court has sided with the Occupational Pneumoconiosis Board in granting a former underground coal miner an increase in his disability benefits even after a lung transplant improved his health.
In its June 11 opinion, the court ruled 5-0 in favor of Randy Brown, who previously had been granted a 30 percent permanent partial disability award after contraction OP. He later sought an increase in the award and filed a petition to reopen his claim in 2018.
The OP Board then determined Brown, who worked in coal mines for more than 38 years, was entitled to a 50 percent impairment award.
Rockspring Development, however, protested the decision to the West Virginia Workers’ Compensation Office of Judges, which affirmed the claims administrator’s decision. Rockspring then appealed to the West Virginia Workers’ Compensation Board of Review, which affirmed the Office of Judges’ decision affirming the claims administrator’s decision.
Rockspring then appealed to the state Supreme Court because, during the pendency of the claim process, Brown underwent a bilateral lung transplant. After the transplant, Brown’s pulmonary function testing and x-ray reports showed no evidence of OP. Rockspring claims the Board of Review was wrong in affirming the additional award because Brown no longer has OP or any pulmonary impairment from OP.
“Under the specific circumstances of this case and by applying our deferential standard of review, we find that the Board of Review did not err,” Justice Haley Bunn wrote in the 5-0 opinion. “We apply the statute’s plain language as written without interpretation. Here, Mr. Brown contracted OP based upon his coal dust exposure during his employment as an underground coal miner, and no party disputes his original diagnosis. “In fact, Mr. Brown’s OP had progressed to such an extent that Rockspring authorized and paid for a bilateral lung transplant. Therefore, applying the plain language of the statute to the undisputed facts of this case, Mr. Brown satisfies the statutory requirement that he has ‘contracted’ OP. …
“Simply put, for a claimant to receive PPD benefits for OP, the OP Board must determine that the claimant has a measurable medical impairment.”
The justices say relevant statutes do not indicate, when measuring impairment, whether those making the decisions about benefits should consider the pulmonary function of the pre-transplant lungs or the function of the post-transplant lungs when the transplant occurred during the pendency of the claim proceedings.
“Our case law is also silent as to this narrow issue involving very unusual timing,” Bunn wrote. “Here, the lower tribunals faced a rare set of factual circumstances. Mr. Brown contracted OP, which continued to progress. The OP Board determined that this progression represented an additional 2 percent% impairment. There is nothing in the record to refute Mr. Brown’s evidence, and the OP Board’s conclusion, that Mr. Brown’s condition prior to his lung transplant entitled him to an additional 20% impairment rating.
“However, while the claim was still pending, Mr. Brown received a bilateral lung transplant. After the deadline to submit evidence had passed, the Office of Judges allowed Rockspring to submit certain medical documentation indicating that Mr. Brown’s pulmonary function was normal following the transplant. It is clear that, but for the serendipitous timing of the transplant surgery, i.e., during the pendency of the claim process, and Rockspring’s submission of medical documents after the evidentiary development deadline, Rockspring’s argument in this case would be baseless.”
In his concurring opinion, Chief Justice Tim Armstead says the state Legislature might need to address the particulars of this case.
“This case presents a unique issue: how to assess and resolve a conflict between a claimant’s pre-transplant and post-transplant medical records for purposes of determining the impairment rating in a workers’ compensation matter,” he wrote. “I concur with the majority opinion’s resolution of this case and write separately to note that it is within the Legislature’s purview to examine and address this issue.
“Guidance from the Legislature would assist employers, claimants and the Occupational Pneumoconiosis Board in assessing future cases presenting similar factual scenarios.”
Armstead says “such guidance would be incredibly valuable.”
“I commend the majority for noting cases from other jurisdictions that have addressed similar issues and agree with the majority’s conclusion that these cases do not resolve the current matter because they involve different statutory language and other distinguishing considerations,” he wrote. “Should the Legislature choose to address this issue, these cases could offer guidance and insight.”
West Virginia Supreme Court of Appeals case number 22-0135