                            STATE OF WEST VIRGINIA

                                                                                FILED
                         SUPREME COURT OF APPEALS                           December 2, 2014
                                                                         RORY L. PERRY II, CLERK
                                                                       SUPREME COURT OF APPEALS
REBA LUCAS, WIDOW OF                                                       OF WEST VIRGINIA

JIMMY LUCAS (DECEASED),
Claimant Below, Petitioner

vs.)   No. 13-1143 (BOR Appeal No. 2048343)
                   (Claim No. 980043463)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

TONEY’S BRANCH COAL COMPANY,
Employer Below, Respondent

AUGUSTA PROCESSING, INC.,
Employer Below, Respondent

and

WILLIAMS MOUNTAIN COAL COMPANY
Employer Below, Respondent

                            MEMORANDUM DECISION
       Petitioner Reba Lucas, widow of Jimmy Lucas, by Robert L. Stultz, her attorney, appeals
the decision of the West Virginia Workers’ Compensation Board of Review. The West Virginia
Office of Insurance Commissioner, by Mary Rich Maloy, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated October 23, 2013, in
which the Board affirmed an April 26, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 16, 2010,
decision denying Mrs. Lucas’s request for dependent’s benefits based on her husband’s death.
The Court has carefully reviewed the records, written arguments, and appendices contained in
the briefs, and the case is mature for consideration.

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       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.

       Mr. Lucas worked as a coal miner for nearly thirty years. He was working for Toney’s
Branch Coal Company in 1997 when he retired. He then filed an application for workers’
compensation benefits based on his exposure to the hazards of occupational pneumoconiosis.
The Occupational Pneumoconiosis Board considered Mr. Lucas’s application, and he was
granted a presumptive 10% permanent partial disability award based on the Occupational
Pneumoconiosis Board’s findings. It reconsidered Mr. Lucas’s claim three years later and
determined that there was no increase in his pulmonary impairment related to occupational
pneumoconiosis. Following this determination, the United States Department of Labor granted
Mr. Lucas a federal award for black lung.

        On June 28, 2009, Mr. Lucas died. His death certificate listed the cause of death as
chronic obstructive pulmonary disease and pneumoconiosis. Mrs. Lucas filed an application for
dependent’s benefits based on Mr. Lucas’s death. William Houser, M.D., evaluated Mr. Lucas’s
records and determined that his chronic obstructive pulmonary disease was a consequence of
exposure to coal dust as well as cigarette smoking. Dr. Houser found that inhalation of coal and
rock dust was a substantial factor in Mr. Lucas’s death. The Occupational Pneumoconiosis Board
then considered Mrs. Lucas’s application. It determined, based on its prior examinations, that
occupational pneumoconiosis was not a material, contributing factor in Mr. Lucas’s death. The
Occupational Pneumoconiosis Board found that there was very minimal change in the nodular
fibrosis in his lungs consistent with occupational pneumoconiosis. It also found no pleural
plaques. On July 16, 2010, the claims administrator denied Mrs. Lucas’s request for dependent’s
benefits. The United States Department of Labor, however, granted Mrs. Lucas dependent’s
benefits for federal black lung based on Mr. Lucas’s death. Gregory J. Fino, M.D., also reviewed
Mr. Lucas’s records and determined that occupational pneumoconiosis did not contribute to his
death. Dr. Fino found that Mr. Lucas’s respiratory impairment was due to cigarette smoking and
there was no radiographic evidence of occupational pneumoconiosis. The Occupational
Pneumoconiosis Board then testified in a hearing before the Office of Judges. On behalf of the
Occupational Pneumoconiosis Board, Jack L. Kinder, M.D., testified that Mr. Lucas’s chronic
obstructive pulmonary disease, which caused his death, was related to his significant history of
cigarette smoking. Dr. Kinder estimated that Mr. Lucas smoked between a half to a full pack of
cigarettes per day for nearly fifty years prior to his death. Dr. Kinder concluded that occupational
pneumoconiosis did not materially contribute to Mr. Lucas’s death. On April 26, 2013, the
Office of Judges affirmed the claims administrator’s decision. The Board of Review affirmed the
Order of the Office of Judges on October 23, 2013, leading Mrs. Lucas to appeal.

        The Office of Judges concluded that occupational pneumoconiosis was not a material,
contributing factor in Mr. Lucas’s death. In reaching this determination, the Office of Judges
relied on the report and hearing testimony of the Occupational Pneumoconiosis Board. The
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Office of Judges determined that the Occupational Pneumoconiosis Board consistently found
that occupational pneumoconiosis did not contribute to Mr. Lucas’s death. The Board of Review
adopted the findings of the Office of Judges and affirmed its Order.

       We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mrs. Lucas has not demonstrated that she is entitled to dependent’s benefits based on her
husband’s death. The evidence in the record does not show that occupational pneumoconiosis
“contributed in any material degree” to Mr. Lucas’s death. Bradford v. Workers’ Comp. Comm’r,
185 W. Va. 434, 442, 408 S.E.2d 13, 21 (1991). The Occupational Pneumoconiosis Board
consistently determined that Mr. Lucas’s death was related to chronic obstructive pulmonary
disease due to his significant history of smoking. The Office of Judges properly accorded this
medical determination “considerable deference” in reaching its own conclusion. Fenton Art
Glass Co. v. W. Va. Office of Ins. Comm’r, 222 W. Va. 420, 431, 664 S.E.2d 761, 772 (2008).
Mrs. Lucas has not presented sufficient evidence undermining the credibility of the Occupational
Pneumoconiosis Board’s findings. Although Dr. Houser believed that Mr. Lucas’s lung problems
were related to occupational pneumoconiosis, his opinion is not supported by the remainder of
the evidence in the record. The Office of Judges was justified in relying on the Occupational
Pneumoconiosis Board’s opinion.

        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: December 2, 2014

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




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