                             STATE OF WEST VIRGINIA 


                          SUPREME COURT OF APPEALS 


VALERIA WYCO, WIDOW OF STANLEY WYCO,                                                FILED
Claimant Below, Petitioner                                                          May 7, 2018
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS

vs.)   No. 17-0974 (BOR Appeal No. 2052002)                                      OF WEST VIRGINIA

                   (Claim No. 2015012489)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

GREEN CONSTRUCTION COMPANY,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner Valeria Wyco, widow of Stanley Wyco, by Reginald D. Henry, her attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. The West
Virginia Office of Insurance Commissioner, by B. Allen Campbell, its attorney, filed a timely
response.

       The issue on appeal is whether Mrs. Wyco is entitled to dependent’s benefits. The claims
administrator denied the request for dependent’s benefits on June 17, 2015. The Office of Judges
affirmed the decision in its May 25, 2017, Order. The Order was affirmed by the Board of
Review on October 2, 2017. 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.


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        Mr. Wyco worked for Green Construction Company as a driller and blaster prior to his
death. In June of 1989, a treatment note by Donald Rasmussen, M.D., indicates Mr. Wyco had
moderately severe, partially reversible obstructive ventilator impairment. On July 12, 1989, Dr.
Rasmussen noted that Mr. Wyco had a long history of silicon dioxide exposure. There was x-ray
evidence of pneumoconiosis and indicated that he had occupationally induced silicosis. Jes
Floreaca, M.D., stated in a treatment note on July 21, 1989, that Mr. Wyco was totally and
permanently disabled as a result of pulmonary impairment caused by exposure to rock dust. In a
hearing in November of 1989, the Occupational Pneumoconiosis Board testified that Mr. Wyco
had total pulmonary function impairment attributable to occupational pneumoconiosis. Mr.
Wyco was granted a permanent total disability award for occupational pneumoconiosis on
February 6, 1990.

       Treatment notes from Access Health Rural Acres indicate Mr. Wyco was treated by
Shrikant Bembalkar, M.D., on October 16, 2007. Dr. Bembalkar diagnosed coal workers’
pneumoconiosis, chronic obstructive pulmonary disease, and hypoxia and noted that he was on
supplemental home oxygen. On July 20, 2014, the diagnoses were listed as silicosis and
occupational pneumoconiosis due to railroad and construction work, chronic sinusitis, asthmatic
bronchitis, chronic obstructive pulmonary disease, hypoxia, resection of colon cancer, and
diabetes, among others.

        On November 12, 2008, Mr. Wyco underwent bilateral femoral artery cut downs,
aortogram, and endovascular abdominal aortic aneurysm repair. Treatment notes by James
Lohan, M.D., indicate Mr. Wyco was diagnosed with stage II transverse colon cancer. He was
treated with surgical excision and on February 14, 2014, he was doing well and did not require
chemotherapy.

         Mr. Wyco was admitted to Charleston Area Medical Center for atrial fibrillation on April
25, 2012. On April 29, 2012, he underwent a myocardial perfusion scan which showed an area of
ischemia with a possible small infarction. The left ventricle was moderately reduced and the
right was enlarged and thickened. A May 1, 2012, treatment note by John Goad, M.D., indicates
Mr. Wyco had a left heart catherization, coronary angiography, and left ventricular pressures.
The findings were severe left anterior descending artery disease with collaterals filling the distal
vessel, mild coronary artery disease, decreased left ventricle function, renal insufficiency, and
atrial fibrillation. A treatment note by Stacy Groom, Nurse Practitioner, dated February 6, 2013,
indicates Mr. Wyco had an echocardiogram that showed cardiomyopathy, coronary artery
disease, hypertension, and diabetes.

       Charles Porterfield, M.D., stated in a July 15, 2013, consultation report that Mr. Wyco
had known occupational pneumoconiosis and silicosis due to working on the railroad. He
smoked for thirty pack years and stopped twenty years prior. Mr. Wyco was treated for sudden
onset of coughing up blood. A CT scan showed an opacity, which was likely scarring. A
bronchoscopy was scheduled. A July 23, 2013, CT report indicates Mr. Wyco had emphysema,
enlargement of the liver with steatosis, and chronic obstructive pulmonary disease.


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        From July 28, 2013, through August 2, 2013, Mr. Wyco was hospitalized at Charleston
Area Medical Center for coughing up blood. Tamajiro Takubo, M.D., performed a fiber optic
bronchoscopy the following day in which he found an endobronchial lesion and noted the blood
was coming from the left upper lobe. The pathology report showed an aspirated foreign body and
fibrous tissue with acute inflammation. Dr. Takubo performed a second bronchoscopy on August
2, 2013. He found multiple, thick old blood clots in the right lung and mild active oozing in the
left upper lobe.

        Dr. Bembalkar’s August 8, 2013, treatment note indicates Mr. Wyco was diagnosed with
silicosis and occupational pneumoconiosis due to railroad work, asthmatic bronchitis, chronic
obstructive pulmonary disease, recurrent coughing up blood, hypoxia, and chronic respiratory
insufficiency. Treatment notes from Pulmonary Associates of Charleston indicate Mr. Wyco
reported coughing, spitting up blood, shortness of breath, and occasional wheezing on August 8,
2013. He was diagnosed with dyspnea, very severe chronic obstructive pulmonary disease, and
hemoptysis. A CT scan was performed and showed multiple areas of concern. An open lung
biopsy was scheduled to check for cancer and showed no malignant cells.

        On September 12, 2013, a chest CT scan showed multiple new areas of subpleural
nodularity and emphysema. It was questionable whether Mr. Wyco had a metastatic disease or an
infection. On January 16, 2014, a CT scan showed a very small area of infiltrate, an unchanged
one centimeter density in the right upper lobe, emphysema, and hepatic steatosis. A treatment
note by Glenn Ridenour, M.D., that same day indicates Mr. Wyco was stable and off of anti-
mycobacterial therapy. He had no progressive symptomology and no progressive CT scan
findings. On July 17, 2014, Dr. Ridenour indicated Mr. Wyco underwent another CT scan which
showed irregular soft tissue density in the right upper lobe that had been present since July of
2013. On August 22, 2014, chest x-ray showed a stable irregular opacity in the right upper lobe
and moderate changes from emphysema.

        Mr. Wyco was admitted to Charleston Area Medical Center on August 26, 2014, for
colon cancer surgery. A chest x-ray taken two days later showed a partially collapsed left lung.
In a September 4, 2014, consultation report, Robby Keith, M.D., noted that Mr. Wyco was
currently sedated and on a ventilator. He diagnosed respiratory failure, chronic obstructive
pulmonary disease, diabetes, and acute renal failure. A chest x-ray showed unchanged
atelectasis. Khan Shabih, M.D., performed a nephrology consultation on September 6, 2014, in
which he diagnosed acute kidney injury and recommended dialysis.

        In a September 7, 2014, consultation report, Chafik Assal, M.D., was asked to review
sinus bradycardia. He recommended a cardiology evaluation, management of shock, and
treatment for suspected sepsis. A note by James Pettit, M.D., indicated Mr. Wyco was in
suspected shock due to sepsis. A chest x-ray showed interstitial opacities and the atelectasis was
improving. A chest x-ray taken on September 9, 2014, showed persistent air space disease in the
left lung base and a small amount of pleural fluid on the left. On September 15, 2014, a chest x-
ray showed lung collapse and/or pneumonia, left worse than right. On September 23, 2014, a
chest x-ray showed improving opacity in the lower left lobe.

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        The September 23, 2014, discharge summary from Charleston Area Medical Center
indicates Mr. Wyco was admitted after a biopsy showed colon cancer. He underwent extensive
bowel section removal. Two days later, Mr. Wyco developed a temperature and tachycardia. He
was taken back to surgery for an exploratory laparotomy on August 28, 2014. He then developed
a post-operative obstruction. On September 4, 2014, he underwent a second exploratory
laparotomy which showed a leak spilling into the abdomen. He was discharged on September 23,
2014.

       On September 27, 2014, Mr. Wyco arrived by ambulance at Raleigh General Hospital in
cardiac arrest. He passed away shortly after arrival. The death certificate, signed by Dr.
Bembalkar, lists the immediate cause of death as cardiopulmonary arrest. Secondary causes were
colon cancer, chronic obstructive pulmonary disease, hypoxia, coronary artery disease, and
diabetes.

       The Occupational Pneumoconiosis Board findings of May 12, 2015, indicate Mr. Wyco
was examined on July 9, 1988, and found to have 5% impairment for occupational
pneumoconiosis. The Occupational Pneumoconiosis Board found the imaging studies from
September 6, 2014, through September 23, 2014, showed occupational pneumoconiosis changes
that were minimal at best. After reviewing the medical records, the Occupational
Pneumoconiosis Board concluded that occupational pneumoconiosis was not a material,
contributing factor in Mr. Wyco’s death. The claims administrator denied Mrs. Wyco’s request
for dependent’s benefits on June 17, 2015.

        In a letter dated September 18, 2015, Dr. Bembalker noted that Mr. Wyco was a driller
and construction blaster. He had severe lung disease, as seen on x-rays and pulmonary function
tests. Dr. Bembalker noted that Mr. Wyco had multiple other problems which eventually resulted
in his death. Though the death certificate did not list occupational pneumoconiosis or silicosis as
causes of death, it was his opinion that the conditions were major contributing factors in Mr.
Wyco’s death.

       Dr. Takubo stated in an October 20, 2015, letter that he first saw Mr. Wyco in July of
2013 for coughing up blood and treated Mr. Wyco until his death. Mr. Wyco suffered from
chronic shortness of breath, frequent bronchitis, and coughing up blood. Dr. Takubo opined that
Mr. Wyco’s lung disease and diffusion abnormalities were greater than would be expected for an
individual with a fifteen-pack-year history of smoking. Dr. Takubo further opined that Mr.
Wyco’s occupational exposure more likely than not led to occupational pneumoconiosis, which
contributed to his death.

        On November 25, 2015, Dominic Gaziano, M.D., opined in a letter that Mr. Wyco’s
death was primarily due to occupational pneumoconiosis. He stated that cardiopulmonary arrest
should not have been listed as the cause of death on the death certificate because all deaths are
related to cardio-respiratory failure unless there is brain death first. Dr. Gaziano opined that Mr.
Wyco did not die of colon cancer, he died as a result of complications from the surgeries for
colon cancer. Those complications were primarily due to his chronic lung disease, which
required ventilatory support. While he had significant coronary artery disease, it was not a
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significant factor in his death. Therefore, Dr. Gaziano concluded that Mr. Wyco’s death was the
result of respiratory failure due to occupational pneumoconiosis and chronic obstructive
pulmonary disease.

        Valeria Wyco, Mr. Wyco’s wife, testified in a deposition on December 18, 2015, that Mr.
Wyco was first treated for colon cancer in 2009. In 2014, it returned. Mr. Wyco was on oxygen
constantly, though it was only supposed to be at night, and had been on oxygen for ten years or
more. She stated that Mr. Wyco was eating breakfast the morning he died. He stopped breathing
and she performed cardiopulmonary resuscitation. Mrs. Wyco stated that in July of 2014, Mr.
Wyco coughed hard and caused a lung bleed for which he was taken to the emergency room. She
also stated that no autopsy was performed after Mr. Wyco died.

        In a November 14, 2016, record review, Gregory Fino, M.D., noted that Mr. Wyco
suffered from serious lung disease due to dust exposure and smoking. Lung function studies
showed severe chronic obstructive pulmonary disease. Numerous chest x-rays and CT scans
showed no evidence of occupational pneumoconiosis or silicosis. Dr. Fino noted that silicon
dioxide was one of the primary dust exposures. Dr. Fino opined that Mr. Wyco had significant
chronic obstructive pulmonary disease, likely caused by cigarette smoking. He noted that there is
no reliable evidence in medical literature that asbestos or silica dust causes chronic obstructive
pulmonary disease. Dr. Fino concluded that Mr. Wyco would have died how and when he did
with or without his history of dust exposure. He found that the death could have been due to
chronic obstructive pulmonary disease or coronary artery disease equally. Occupational
pneumoconiosis was not present and played no role in the death.

        The Occupational Pneumoconiosis Board testified in a hearing before the Office of
Judges on April 5, 2017. It noted that Mr. Wyco had been granted a permanent total disability
award for occupational pneumoconiosis. Based on radiological evidence, the Board stated that it
could not make a diagnosis of occupational pneumoconiosis. In 2008, Mr. Wyco had an aortic
aneurysm repair. He had colon cancer in 2009. In 2013, he had bypass surgery for coronary
artery disease. He also suffered from congestive heart failure and MAC complex. The
Occupational Pneumoconiosis Board noted that Mr. Wyco had colon cancer in 2014 and most of
his colon was removed on August 26, 2014. He was released to return home on September 23,
2014. He passed away four days later and the Board noted that it was unware of the events
surrounding his death. It stated that he appeared to have died from complications from his
previous surgery, though the cause of death was unknown. The Board found that it did not make
clinical sense to find that the death was the result of respiratory failure caused by occupational
pneumoconiosis. It concluded based on the evidence that occupational pneumoconiosis was not a
material, contributing factor in Mr. Wyco’s death.

       The Office of Judges affirmed the claims administrator’s denial of dependent’s benefits
on May 25, 2017. It found per West Virginia Code § 23-4-6a (2005) that the standard of review
is whether or not the Occupational Pneumoconiosis Board was clearly wrong in its opinion. The
Office of Judges found that Mr. Wyco suffered from multiple severe, chronic medical conditions.
He did suffer from severe breathing problems and was found to have total pulmonary impairment
due to occupational pneumoconiosis. Medical records also show that he had severe chronic
                                                5

obstructive pulmonary disease, which was not caused by occupational pneumoconiosis. The
Office of Judges noted that he also had serious cardiac conditions, including congestive heart
failure. The Occupational Pneumoconiosis Board was not sure of the cause of death but believed
it was most likely due to the aftermath of his colon cancer that required three separate surgeries
in September of 2014. The Office of Judges noted that there were treating physicians who found
occupational pneumoconiosis was a material contributing factor in the death and that Dr. Fino
found that it was not. The Office of Judges concluded that it was a close case, but after review, it
could not find that the Occupational Pneumoconiosis Board was clearly wrong in its conclusion
that occupational pneumoconiosis was not a material contributing factor in Mr. Wyco’s death.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on October 2, 2017.

        After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The burden of proof is on Mrs. Wyco to show that
occupational pneumoconiosis was a material, contributing factor in Mr. Wyco’s death. Further,
West Virginia Code § 23-4-6a (2005) states that the standard of review is whether or not the
Occupational Pneumoconiosis Board was clearly wrong in its opinion. Mr. Wyco had multiple,
serious, chronic medical conditions. In the weeks prior to his death, he was hospitalized for colon
cancer and underwent three separate surgeries. The death certificate does not list occupational
pneumoconiosis as a cause of death. Given the evidence of record, it cannot be said that the
Occupational Pneumoconiosis Board was clearly wrong in its decision.

        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: May 7, 2018

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

DISSENTING:
Chief Justice Margaret L. Workman.




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