Richard Higginbotham v. Frasure Creek Mining, LLC

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
RICHARD HIGGINBOTHAM, May 23, 2024
Claimant Below, Petitioner ASHLEY N. DEEM, DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 23-ICA-572 (JCN: 2016020557)

FRASURE CREEK MINING, LLC,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Richard Higginbotham appeals the December 12, 2023, order of the
Workers’ Compensation Board of Review (“Board”). Respondent Frasure Creek Mining,
LLC, (“FCM”) filed a response.12 Mr. Higginbotham did not reply. The issue on appeal is
whether the Board erred in affirming the claim administrator’s order, which found that Mr.
Higginbotham had been fully compensated by his prior permanent partial disability
(“PPD”) awards for occupational pneumoconiosis (“OP”).

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 September 27, 1993, in claim number 930017069, Mr. Higginbotham was
granted a 5% PPD award for OP based on the report of the OP Board finding x-ray evidence
of OP with no pulmonary impairment. Mr. Higginbotham filed an Employee’s Report of
Occupational Pneumoconiosis dated December 9, 2015, indicating that his date of last
exposure was March 15, 2013. On February 12, 2016, the claim administrator held the
claim compensable on a non-medical basis subject to the statutory presumption.3 The OP

1
Mr. Higginbotham is represented by Reginald D. Henry, Esq., and Lori J. Withrow,
Esq. FCM is represented by Sean Harter, Esq.

2
This Court recognizes that the Board’s final order and the Petitioner’s pleadings
all name Respondent as Frasure Mining Creek, LLC. The Court believes this to be a
typographical error and will use Respondent’s correct name throughout this decision.
3
West Virginia Code § 23-4-8c(b) (2009) provides:

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Board issued findings dated July 12, 2016, detailing its examination of Mr. Higginbotham.
The OP Board found evidence of 15% pulmonary impairment related to OP. On September
6, 2016, the claim administrator issued an order granting Mr. Higginbotham an additional
10% PPD award based on the OP Board’s findings.

Mr. Higginbotham submitted an application to reopen his claim for PPD benefits
dated February 22, 2021. The application was signed by Daniel Doyle, M.D., and indicated
that Mr. Higginbotham had progressive exertional dyspnea and coughing with exertion.
The claim administrator issued an order dated March 8, 2021, reopening the claim for PPD
benefits based on the non-medical presumption. Mr. Higginbotham was reexamined by the
OP Board on August 26, 2021. The OP Board noted that Mr. Higginbotham was exposed
to a dust hazard for eighteen years with exposure sufficient to cause OP. The OP Board
further noted that Mr. Higginbotham’s chest x-rays revealed a mild nodular fibrotic process
consistent with simple OP without any pleural disease. The OP Board found that Mr.
Higginbotham had no additional pulmonary impairment above the 15% he was previously
granted.

The claim administrator issued an order dated October 19, 2021, granting no
additional PPD award based upon the OP Board's August 26, 2021, findings. Mr.
Higginbotham protested this order. The members of the OP Board testified in this claim on
February 16, 2022, and on September 20, 2023. Johnsey Leef, Jr., M.D., the OP Board’s
radiologist, testified that Mr. Higginbotham’s chest x-rays demonstrated a mild, nodular
fibrotic process consistent with simple OP, and hyperinflation in the upper lobes consistent
with chronic obstructive pulmonary disease (“COPD”). Dr. Leef noted that Mr.
Higginbotham had a 28-year history of smoking cigars, which can cause COPD. Jack
Kinder, M.D., the chairman of the OP Board testified that he agreed with Dr. Leef’s
interpretation of the x-rays. Dr. Kinder further testified that although the spirometry
performed on August 26, 2021, revealed 25% impairment, only 15% was attributable to
OP. Dr. Kinder opined that the remaining 10% impairment was attributable to Mr.
Higginbotham’s COPD caused by smoking.

On December 12, 2023, the Board affirmed the claim administrator’s order, which
found that Mr. Higginbotham had been fully compensated by his prior PPD awards for OP.

If it can be shown that the claimant or deceased employee has been exposed
to the hazard of inhaling minute particles of dust in the course of and resulting
from his or her employment for a period of ten years during the fifteen years
immediately preceding the date of his or her last exposure to such hazard and
that the claimant or deceased employee has sustained a chronic respiratory
disability, it shall be presumed that the claimant is suffering or the deceased
employee was suffering at the time of his or her death from occupational
pneumoconiosis which arose out of and in the course of his or her
employment. This presumption is not conclusive.
2
The Board found that Mr. Higginbotham failed to establish that the OP Board was clearly
wrong. Mr. Higginbotham 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
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

On appeal, Mr. Higginbotham argues that he had eighteen years of occupational
dust exposure and the studies of record revealed that he has a 25% impairment. Mr.
Higginbotham further argues that the OP Board did not take into consideration that its own
testing found a progressive worsening of his impairment, from 5% in 1993, to 15% in 2016,
to 25% in the most recent studies. Finally, Mr. Higginbotham argues that it is against
reason, with OP being a progressive disease, that the 10% increase in pulmonary
impairment from 2016 to 2021 was solely due to non-occupational factors. 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 determined that Mr. Higginbotham failed to establish that the OP
Board was clearly wrong. Based on the OP Board’s findings, the Board found that the
presumption under West Virginia Code § 23-4-8c(b) had been rebutted to 15%. Thus, the
Board found that Mr. Higginbotham failed to establish with medical evidence that he has
more than 15% impairment related to OP.

Upon review, we conclude that Mr. Higginbotham 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. As the Supreme Court of
Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and

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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).

Accordingly, we affirm the Board’s December 12, 2023, order.

Affirmed.

ISSUED: May 23, 2024

CONCURRED IN BY:

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

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