                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                        FILED
ELIZABETH FOSTER, WIDOW OF VIRGIL L. FOSTER,                                           March 30, 2017
                                                                                   RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                       SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

vs.)   No. 16-0416 (BOR Appeal No. 2050940)
                    (Claim No. 2014007355)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

AND

GLASSWARE ACQUISITION, INC.,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner Elizabeth Foster, widow of Virgil L. Foster by Robert L. Stultz, her attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. West
Virginia Office of Insurance Commissioner by Noah A. Barnes, its attorney, filed a timely
response.

       This appeal arises from the Board of Review’s Final Order dated March 28, 2016, in
which the Board affirmed the October 29, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 17, 2014,
decision denying Mrs. Foster’s request for dependent’s benefits. The Court has carefully
reviewed the records, written arguments, and appendices contained in the briefs, and the case is
mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Virgil L. Foster, the deceased, worked in various glass plants for forty-six years. He
stopped working in August of 2002. Mr. Foster passed away on February 4, 2013. Elizabeth
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Foster, his widow, submitted a claim for dependent’s benefits on September 11, 2013. On
October 17, 2014, the claims administrator denied Mrs. Foster’s request for dependent’s benefits
based on the decision of the Occupational Pneumoconiosis Board.

       Mr. Foster was seen by Ronald Mudry, M.D., on May 2, 2012, for a persistent cough and
shortness of breath. Dr. Mudry noted he had a history of occupational inhalation. Dr. Mudry
diagnosed asbestosis, cough, hypoxemia, and chest pain. A May 9, 2012, CT scan of the chest
revealed diffuse interstitial thickening and bronchiectatic changes, most prominent in the lung
bases. After the CT scan, Mr. Foster was seen by Dr. Mudry who noted the symptoms began ten
years ago. Dr. Mudry diagnosed asbestosis, respiratory failure, and cough.

        On June 27, 2012, A. Sabbagh, M.D., performed an echocardiogram which revealed
inferior lateral moderate hypokinesis, mild mitral regurgitation, moderate to severe tricuspid
regurgitation, and trace to mild aortic insufficiency. Mr. Foster returned to see Dr. Mudry for a
pulmonary fibrosis reassessment on August 8, 2012. Dr. Mudry changed his medication and
diagnosed chronic asbestosis, chronic respiratory failure, chronic cough, and chronic hypoxemia.
On November 7, 2012, Dr. Mudry noted the asbestosis symptoms had been incapacitating. The
diagnoses continued to be chronic asbestosis and chronic respiratory failure.

       Mr. Foster returned to see Dr. Mudry on January 30, 2013, due to increased symptoms.
He reported severe shortness of breath and constant, incapacitating symptoms. The diagnoses
remained the same. Dr. Mudry referred him for Hospice Care. St. Joseph’s Hospital records
show the decedent passed away due to cardiac arrest on February 4, 2013. The Certificate of
Death completed by Dr. Mudry on February 28, 2013 states that Mr. Foster died due to
asbestosis.

       On August 26, 2014, the Occupational Pneumoconiosis Board reviewed the medical
evidence as well as the death certificate. It noted that no death summary or autopsy report was
available. Additionally, no radiographs were available for interpretation. The Occupational
Pneumoconiosis Board determined that occupational pneumoconiosis was not a material
contributing factor in Mr. Foster’s death.

         In its October 29, 2015, Order, the Office of Judges determined that the Occupational
Pneumoconiosis Board did not find evidence of pleural plaque and concluded there was
insufficient evidence to diagnosis asbestosis. The Office of Judges noted that Mr. Foster had a
chronic lung disease but that the Occupational Pneumoconiosis Board was unable to say his
occupational exposure was a material factor in his death as they saw no evidence of asbestos
disease. The Office of Judges saw no evidence that would demonstrate the Occupational
Pneumoconiosis Board’s decision was clearly wrong and affirmed the claims administrator’s
October 17, 2014, denial of dependent’s benefits.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on March 28, 2016. After review, we agree with the Board of
Review. While there is evidence that Mr. Foster had a lung condition, the Occupational
Pneumoconiosis Board was not willing to state he had asbestosis based upon the evidence
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submitted. Therefore, the Occupational Pneumoconiosis Board was not able to state that
occupational pneumoconiosis was a material contributing factor in Mr. Foster’s death. The
Occupational Pneumoconiosis Board’s analysis was supported by medical evidence. The Office
of Judges and Board of Review relied on the findings and conclusions of the Occupational
Pneumoconiosis Board. The request for dependent’s benefits was properly denied.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.



                                                                                        Affirmed.

ISSUED: March 30, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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