                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
                                                                                  August 2, 2017
BETTY TUDOR, WIDOW OF EDESSEL TUDOR,                                           RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


vs.)   No. 16-0829 (BOR Appeal No. 2051227)
                   (Claim No. 860070801)

U.S. STEEL MINING COMPANY, INC.,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner Betty Tudor, widow of Edessel Tudor, by Robert L. Stultz, her attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. U.S. Steel
Company, Inc., by Howard G. Salisbury Jr., its attorney, filed a timely response.

       The issue on appeal is whether the claimant is entitled to decedent’s benefits. The claims
administrator denied dependent’s benefits on April 21, 2014. The Office of Judges affirmed the
decision in its April 11, 2016, Order. The Order was affirmed by the Board of Review on August
8, 2016. 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.

        Mrs. Tudor alleges that her husband, Edessel Tudor, died as a result of occupational
pneumoconiosis contracted during his work as a coal miner. Mr. Tudor underwent pulmonary
function studies on February 4, 1988, by M. Tampoya, M.D. Dr. Tampoya found a forced vital
capacity (FVC) of 72%, a forced expiratory volume (FEV1) of 85% and the FEV1/FVC ratio
was 116%. Dr. Tampoya diagnosed chronic obstructive pulmonary disease due to dust exposure
and cigarette smoking. The pulmonary impairment was described as mild to moderate. A chest x-
ray taken the following day showed chronic lung changes probably related to pneumoconiosis.
The radiologist diagnosed minimal changes of pneumoconiosis. A chest x-ray taken on March
11, 1998, showed primary small opacities with a profusion of 1/0.
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        In a June 13, 1988, treatment note, Mario Cardona, M.D., noted complaints of shortness
of breath, cough, and chest pain. Mr. Tudor reported shortness of breath for twelve to fourteen
years that worsened with activity. He also reported reduced activities of daily living, episodes of
dyspnea, and wheezing. A chest x-ray showed emphysematous configuration with coarse rales in
all fields. Dr. Cardona diagnosed chronic obstructive pulmonary disease secondary to coal
workers’ occupational pneumoconiosis. Dr. Cardona opined that based on the evidence, the
decedent’s disease should be considered the result of occupational pneumoconiosis.

        A pulmonary function study on June 13, 1988, indicated Mr. Tudor smoked a half a pack
of cigarettes a day for twenty years. His pre-bronchodilator FVC was 55% and the FVC post­
bronchodilator was 48%. FEV1 was 57% pre and 50% post-bronchodilator. Mr. Tudor was seen
by George Zaldivar, M.D., on January 4, 1989, who found an FVC of 45%, and FEV1 of 42%,
and a ratio of 74%. Dr. Zaldivar concluded that the pulmonary function studies were invalid due
to poor effort and the fact that Mr. Tudor had normal resting blood gases.

       In a February 24, 1989, report, Dr. Zaldivar found invalid effort during the ventilatory
study which prevented further testing and the high carboxyhemoglobin of a current smoker.
Though Mr. Tudor denied smoking at that time, his carboxyhemoglobin was 5.8 whereas a
normal level for a nonsmoker is 2.0. Dr. Zaldivar concluded that Mr. Tudor did not suffer from
occupational pneumoconiosis.

       Mallinath Kayi, M.D., conducted a medical evaluation on February 28, 1989, in which he
noted that Mr. Tudor was a coal miner for seventeen years. Mr. Tudor reported progressive
shortness of breath since 1978. He also reported cough with blood tinged sputum. Examination
of Mr. Tudor was difficult due to complaints of constant pain. Examination of the lungs revealed
poor breath sounds. X-ray showed hyperaerated lung fields. FEV1 and FVC showed mild to
moderate restrictive lung disease. Dr. Kayi opined that Mr. Tudor had moderate to severe and
permanent pulmonary impairment. Chest x-rays taken that day showed evidence of
pneumoconiosis. Mr. Tudor was awarded federal black lung benefits on July 6, 1989.

        Mr. Tudor passed away on June 19, 2013. His death certificate indicates he died of
respiratory failure due to chronic obstructive pulmonary disease and black lung. The
Occupational Pneumoconiosis Board noted in its March 11, 2014, findings that Mr. Tudor was
awarded a 5% permanent partial disability award for occupational pneumoconiosis on December
3, 1992. The Occupational Pneumoconiosis Board reviewed records, including a July 20, 1988,
x-ray which was interpreted as showing insufficient pleural and parenchymal changes to
establish a diagnosis of occupational pneumoconiosis. The Occupational Pneumoconiosis Board
determined that occupational pneumoconiosis was not a material, contributing factor in Mr.
Tudor’s death. The claims administrator denied Mrs. Tudor’s request for dependent’s benefits on
April 21, 2014.

         Frank Scattaregia, M.D., reviewed Mr. Tudor’s medical records and issued a March 4,
2015, report. He noted that Mr. Tudor’s death certificate listed the cause of death as respiratory
failure, chronic obstructive pulmonary disease, and black lung. He opined that the majority of the
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x-ray readings were positive for occupational pneumoconiosis and that the pulmonary function
studies demonstrated significant pulmonary impairment. Dr. Scattaregia stated that based upon
his experience of being an evaluator for the U.S. Department of Labor for thirty years, Mr. Tudor
suffered from occupational pneumoconiosis. He further asserted that occupational
pneumoconiosis played a material, contributing role in his death.

        Dr. Zaldivar stated in a June 29, 2015, record review that Mr. Tudor’s description of his
smoking history was not accurate. He stated that smoking is a cause of asthma and that
individuals who smoke also develop chronic obstructive pulmonary disease or emphysema,
usually a combination of the two. He stated that occupational pneumoconiosis could cause
asthma but in this case there was no evidence of occupational asthma. CT scans showed no
physical evidence of dust deposits in the lungs. Dr. Zaldivar opined that the readers of the x-rays
who interpreted them as showing occupational pneumoconiosis were wrong as there is no
evidence of pneumoconiosis. He concluded that Mr. Tudor had no clinical indication of
occupational pneumoconiosis but did have asthma and emphysema caused by smoking. Dr.
Zaldivar concluded that death was a result of multi-organ failure since the records clearly show
renal failure, heart dysfunction, and pneumonia. Dr. Zaldivar opined Mr. Tudor died due to
respiratory failure caused by fluid overload as well as pneumonia and would have happened
regardless of the underlying lung conditions.

        Dr. Scattaregia testified in a deposition on September 18, 2015, that Mr. Tudor may not
have accurately described his smoking history. Mr. Tudor had a significant smoking history and
Dr. Scattaregia believed he smoked approximately half a pack a day for forty years. Dr.
Scattaregia admitted that he was not a B Reader and that his opinion was based on x-ray
interpretations by other physicians. He stated that he based his conclusion on Mr. Tudor’s work
history, the death certificate, the federal black lung benefits award decision, and x-ray findings of
simple pneumoconiosis. He stated that the most important factors he relied on were the death
certificate and his clinical experience of treating people like Mr. Tudor. However, Dr.
Scattaregia admitted that he did not know if the physician who completed the death certificate
was part of Mr. Tudor’s care. He also did not know that Mr. Tudor had pneumonia at the time of
his death.

        The Occupational Pneumoconiosis Board testified in a hearing on March 2, 2016. Jack
Kinder, M.D., stated that prior to his death, Mr. Tudor was in acute respiratory failure and had
pneumonia. It was clear that he died a respiratory death. He had been diagnosed with black lung,
chronic obstructive pulmonary disease, and acute-on chronic diastolic congestive heart failure.
Dr. Kinder explained that Mr. Tudor had respiratory compromise and infectious etiology in his
lung that affected his body systems. Dr. Kinder did not believe occupational pneumoconiosis
materially contributed to Mr. Tudor’s death. The underlying cause of the respiratory problems,
he opined, was a history of smoking half a pack of cigarettes a day for thirty to forty years. Dr.
Kinder also emphasized that high resolution chest CT scans were negative for occupational
pneumoconiosis. Rajesh Patel, M.D., testified on behalf of the Board that Mr. Tudor died from
sepsis, respiratory failure, and pneumonia. Dr. Patel stated that looking at radiographs and CT
reports, he was unable to make a diagnosis of occupational pneumoconiosis. He agreed with Dr.
Kinder’s testimony and conclusion that occupational pneumoconiosis did not materially
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contribute to the decedent’s death. Jack Willis, M.D., also testified on behalf of the Board and
agreed that there was no evidence of occupational pneumoconiosis and that occupational
pneumoconiosis was not a material contributing factor in Mr. Tudor’s death.

        The Office of Judges affirmed the claims administrator’s rejection of the claim on April
11, 2016. It found that though Mr. Tudor had been awarded federal black lung benefits, there
was evidence that he had a significant smoking history and Dr. Zaldivar indicated that Mr. Tudor
did not accurately describe his smoking history. Dr. Zaldivar and the Occupational
Pneumoconiosis Board both emphasized that Mr. Tudor’s CT scans showed no evidence of
occupational pneumoconiosis and that CT scans are better indicators of occupational
pneumoconiosis. Dr. Zaldivar found that any asthma or emphysema Mr. Tudor had was due to
cigarette smoking and unrelated to his work as a coal miner. Dr. Zaldivar and the Occupational
Pneumoconiosis Board both also believed that Mr. Tudor’s death was due to respiratory failure
from pneumonia, fluid overload, renal failure, and cardiac disease. Neither believed that
occupational pneumoconiosis materially contributed to the death.

        The Office of Judges concluded that Dr. Scattaregia’s report and testimony were not
reliable. Dr. Scattaregia’s report lacks detail and does not address the smoking history, Mr.
Tudor’s condition at the time of his death, or the lack of evidence of occupational
pneumoconiosis on chest CT scans. During his testimony, Dr. Scattaregia admitted that he did
not know Mr. Tudor had pneumonia at the time of his death. He stated that his finding of
occupational pneumoconiosis was based on chest x-ray interpretations by other physicians;
however, he admitted that CT scans are better indicators of occupational pneumoconiosis.

        The Office of Judges ultimately concluded that Mr. Tudor had a long history of cigarette
smoking and no evidence of occupational pneumoconiosis on CT scans. Though he was awarded
federal black lung benefits, that opinion rested on x-ray findings and not CT scans. The
Occupational Pneumoconiosis Board was not clearly wrong when it found that occupational
pneumoconiosis was not a material contributing factor in Mr. Tudor’s death and that he died of
respiratory failure due to non-occupational conditions. The Board of Review adopted the
findings of fact and conclusions of law of the Office of Judges and affirmed its Order on August
8, 2016.

       After review, we agree with the reasoning of the Office of Judges and conclusions of the
Board of Review. The opinions of Dr. Zaldivar and the Occupational Pneumoconiosis Board
were clearly more reliable than that of Dr. Scattaregia. Mr. Tudor died as a result of non-
occupational respiratory failure. There was no evidence of occupational pneumoconiosis on CT
scans.

        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.


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                                        Affirmed.

ISSUED: August 2, 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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