Wilburn T. Preece, Jr. v. Kermit Volunteer Fire Department

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
WILBURN T. PREECE, JR., March 25, 2024
Claimant Below, Petitioner C. CASEY FORBES, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 23-ICA-446 (JCN: 2022017976)

KERMIT VOLUNTEER FIRE DEPARTMENT,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Wilburn T. Preece, Jr., appeals the September 11, 2023, order of the
Workers’ Compensation Board of Review (“Board”). Respondent Kermit Volunteer Fire
Department, Inc., (“KVFD”) filed a response.1 Mr. Preece did not file a reply. The issue
on appeal is whether the Board erred in affirming the claim administrator’s order, which
denied the claim.

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.

In 2014, Mr. Preece began working as fire chief full-time for the KVFD. In a
previous claim, Mr. Preece was granted a 17.5% PPD award in 2015 for occupational
hearing loss related to his employment with another employer for whom he worked as a
coal miner. Mr. Preece filed an Employees’ and Physicians’ Report of Occupational
Hearing Loss dated August 25, 2020; indicating that he has occupational hearing loss due
to noise exposure related to his employment at KVFD. On March 9, 2022, the claim
administrator issued an order denying Mr. Preece’s application for benefits due to a finding
that he was not exposed to hazardous noise in the course of and resulting from his
employment at KVFD. Mr. Preece protested this order.

Mr. Preece was deposed on May 13, 2022. Mr. Preece indicated that his job as fire
chief required him to be at the fire station on a daily basis. Mr. Preece testified that he
answered 90% of the calls received by the fire department and that during the calls he
would be exposed to loud noise from the sirens. Mr. Preece further testified that the fire

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Mr. Preece is represented by Donald C. Wandling, Esq. KVFD is represented by
Jeffrey M. Carder, Esq.
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department answers between 300 and 500 calls each year and that answering a call could
take between twenty and thirty minutes wherein he would be exposed to the noise from the
engine and siren.

Mr. Preece was evaluated by David Phillips, M.D., who drafted a report dated
December 14, 2022. Dr. Phillips found that Mr. Preece had a total of 22% whole person
impairment (“WPI”) related to hearing loss. Dr. Phillips noted that Mr. Preece has a
medical history of diabetes, hypertension, and elevated cholesterol, all of which can
contribute to progressive hearing loss. Thus, Dr. Phillips attributed 17.5% of Mr. Preece’s
hearing loss to prior mining occupational noise exposure and 4.5% to nonoccupational
factors. Dr. Philips did not acknowledge Mr. Preece’s employment at KVFD or opine about
any potential impairment related to noise exposure from KVFD.

On March 29, 2023, Mr. Preece was examined by Joseph Touma, M.D. Dr. Touma
found that Mr. Preece had a total of 23% WPI for hearing loss related to occupational noise
exposure. Dr. Touma’s report indicates that adjustments were made for non-noise related
impairment, but the report does not give any further details regarding those adjustments.
Dr. Touma opined that Mr. Preece’s worsening hearing loss “may” be due to subsequent
noise exposure from his new work environment with KVFD. Dr. Touma further opined
that Mr. Preece had no preexisting conditions that could have contributed to his progressive
hearing loss.

On September 11, 2023, the Board affirmed the claim administrator’s order denying
Mr. Preece’s application for benefits. The Board found that Mr. Preece failed to establish
that any progression of his hearing loss was due to occupational noise exposure. Mr. Preece
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. Preece argues that the Board erred in finding that Dr. Phillips’ report
was more persuasive than Dr. Touma’s report when Dr. Phillips failed to offer an opinion
on Mr. Preece’s job as fire chief, concluding that Mr. Preece was last exposed to significant
workplace noise in 2015 when he ceased working as a miner. Further, Mr. Preece argues
that Dr. Touma’s report should have been found more persuasive because he considered
both occupational and non-occupational factors in his report and stated that his opinion was
to a reasonable degree on medical probability.

Here, the Board found that Mr. Preece failed to establish that his job as fire chief
caused additional hearing loss. The Board further found that Dr. Touma’s report was not
persuasive because he did not sufficiently consider whether Mr. Preece’s progressive
hearing loss was due to causes other than occuational noise exposure. The Board noted that
Dr. Touma opined that Mr. Preece’s additional hearing loss may be due to subsequent
occupational noise exposure, not that it was the cause.

Upon review, we cannot conclude that the Board was clearly wrong in finding that
Mr. Preece failed to establish that his job as fire chief has caused additional hearing loss.
As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’
and the ‘arbitrary and capricious’ standards of review are deferential ones which presume
an agency’s actions are valid as long as the decision is supported by substantial evidence
or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996).
With this deferential standard of review in mind, we cannot conclude that the Board was
clearly wrong in affirming the claim administrator’s order rejecting the claim.

Dr. Phillips’ report did not address Mr. Preece’s job as fire chief and whether there
was exposure to hazardous levels of noise in the course of his employment with KVFD. In
fact, Dr. Phillips did not even acknowledge that Mr. Preece was working as a fire chief or
consider whether that could cause additional hearing loss. However, we cannot find that
the Board was clearly wrong in finding that Dr. Touma’s report was insufficient to establish
that Mr. Preece’s occupation has caused further hearing loss. While Dr. Touma did mention
both occupational and non-occupational factors, we agree with the Board that he did not
adequately consider whether Mr. Preece’s hearing loss progression is due to non-
occupational factors. As Mr. Preece had the burden to prove by a preponderance of
evidence that the progression of his hearing loss was attributable to occupational noise
exposure, we find that the Board was not clearly wrong in its ultimate conclusion that Mr.
Preece failed to do so.

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Accordingly, we affirm the Board’s September 11, 2023, order.

Affirmed.

ISSUED: March 25, 2024

CONCURRED IN BY:

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

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