Harold Cosner v. Consolidation Coal Company
20-0416
| W. Va. | Sep 22, 2021Background
- Harold Cosner, a retired coal miner with ~38 years' dust exposure, had a prior 5% permanent partial disability (PPD) award for occupational pneumoconiosis.
- OP Board evaluations in 2012 and 2018 found no more than 5% impairment based on chest x‑rays and pulmonary testing; claims administrator denied additional PPD in Sep 2012 and Oct 2018.
- Dr. Attila Lenkey (Feb 8, 2018) reported a diffusion study showing 15% impairment and a chest x‑ray reading supporting pneumoconiosis; pulmonary function otherwise largely normal.
- Office of Judges reopened the claim (June 1, 2018) for further consideration but later affirmed the 5% finding after hearings where the OP Board relied on its own studies.
- The OP Board testified it accepts the most reliable/best study and found the Board’s 2018 diffusion study lower (5%) than Dr. Lenkey’s; it concluded Cosner was fully compensated by the prior 5% award.
- The Board of Review affirmed the Office of Judges’ decision; the Supreme Court of Appeals affirmed, applying statutory deference and finding the 5% determination supported by the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cosner is entitled to additional PPD beyond prior 5% for occupational pneumoconiosis | Lenkey’s Feb 2018 diffusion study shows 15% impairment supporting increased award | OP Board’s exams and best‑study approach show no more than 5% impairment; prior award sufficient | Court affirmed denial of additional award; preponderance supports no more than 5% |
| Whether the Board/Office of Judges erred or misapplied law in crediting OP Board’s findings | Board mischaracterized evidence and ignored Lenkey’s 15% result | Board properly relied on its own reliable studies and statutory/deferential review standards | Court held the Board’s decision was not clearly wrong; deference applies and affirmation proper |
Key Cases Cited
- Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577 (2015) (explains deference to Board of Review and limits on appellate reweighing of evidence)
- Justice v. W. Va. Office Ins. Comm’r, 230 W. Va. 80 (2012) (applies de novo review to questions of law arising from Board decisions)
- Davies v. W. Va. Off. of Ins. Comm’r, 227 W. Va. 330 (2011) (addresses standards for appellate review of workers’ compensation determinations)