                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 1, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
PEARL BARTON, WIDOW OF                                                        OF WEST VIRGINIA

CLARENCE BARTON,
Claimant Below, Petitioner

vs.)   No. 12-0353 (BOR Appeal No. 2046288)
                    (Claim No. 770012141)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

SOUTHERN APPALACHIAN COAL COMPANY, AND
CEDAR COAL COMPANY,
Employers Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Pearl Barton, by Robert Williams, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon Snyder, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 16, 2012, in
which the Board affirmed an August 4, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 29, 2009,
decision denying Ms. Barton’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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Barton worked as a coal miner for over twenty years. He received a permanent
partial disability award for occupational pneumoconiosis during his life. He passed away on
October 11, 2008, and Ms. Barton requested dependent’s benefits. The Occupational
Pneumoconiosis Board found that occupational pneumoconiosis did not materially contribute to
Mr. Barton’s death on February 19, 2009. The claims administrator denied the request for
dependent’s benefits on April 29, 2009.

         The Office of Judges affirmed the claims administrator’s decision, and held that the
preponderance of the evidence supported the Occupational Pneumoconiosis Board’s finding that
occupational pneumoconiosis did not materially contribute to Mr. Barton’s death. On appeal, Ms.
Barton disagrees and asserts that Drs. Gaziano and Rasmussen found that occupational
pneumoconiosis played a material contributing part in Mr. Barton’s death, and Dr. Kinder
testified that this would be a case that physicians could disagree as to the role of occupational
pneumoconiosis. The West Virginia Office of Insurance Commissioner maintains that Mr.
Barton’s significant smoking history and other health problems caused his death, not
occupational pneumoconiosis. Dr. Gaziano found on November 16, 2009, that chronic
obstructive pulmonary disease caused Mr. Barton’s death which was to a great extent due to
occupational pneumoconiosis. Dr. Rasmussen agreed with Dr. Gaziano and found that Mr.
Barton’s occupational pneumoconiosis was a material contributing cause to his disabling and
ultimately fatal chronic lung disease. On June 7, 2010, Dr. Fino found that Mr. Barton’s chronic
obstructive pulmonary disease was due to his significant smoking history of up to eighty
pack/years, which was almost four times the amount of pack/years of smoking than number of
years working in the mines. Dr. Kinder, of the Occupational Pneumoconiosis Board testified on
July 6, 2010, that the hospitalization was due to Mr. Barton’s chronic obstructive pulmonary
disease relating to his seventy pack/years smoking history.

         In affirming the claims administrator’s decision, the Office of Judges noted Mr. Barton’s
seventy pack/year smoking history and significant non-occupational related diseases such as
atrial fibrillation, coronary disease, and renal insufficiency which can cause shortness of breath
and pulmonary dysfunction. It further noted that there were no x-ray findings or pathology
materials available, and Dr. Kinder found without that evidence he could not recommend that
occupational pneumoconiosis played a material contributing factor in Mr. Barton’s death. The
preponderance of the evidence does not establish that the Occupational Pneumoconiosis Board’s
findings were clearly wrong. The Board of Review reached the same reasoned conclusions in its
decision of February 16, 2009. We agree with the reasoning and conclusions of the Board of
Review.

        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: November 1, 2013

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

Chief Justice Brent D. Benjamin, disqualified




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