                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 20, 2013

                                                                            RORY L. PERRY II, CLERK

DORA QUEEN, WIDOW OF NOLAN QUEEN,                                         SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0871	 (BOR Appeal No. 2045318)
                    (Claim No. 770089565)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CONNORS STEEL COMPANY HUNTINGTON WORKS,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Dora Queen, 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 Mary Rich Maloy, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 5, 2011, in which
the Board affirmed an October 28, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s May 21, 2008, decision
denying Ms. Queen’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.

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         Nolan Queen passed away on March 23, 2007. Mr. Queen received a permanent partial
disability award for occupational pneumoconiosis during his life. His death certificate listed the
immediate cause of death as chronic obstructive pulmonary disease with asbestosis and cigarette
smoking as underlying causes, and other significant conditions were heart failure and atrial
fibrillation. On May 21, 2008, the claims administrator denied Ms. Queen’s request for
dependent’s benefits because occupational pneumoconiosis was not a contributing factor in the
death of the decedent, relying on the Occupational Pneumoconiosis Board’s findings of April 1,
2008.

        The Office of Judges affirmed the claims administrator’s Order, and concluded that the
preponderance of the evidence established that occupational pneumoconiosis did not cause, nor
materially contribute to the decedent’s death. On appeal, Ms. Queen disagrees and asserts that
the evidence, namely the reports of Drs. Gaziano and Rasmussen, establish that occupational
pneumoconiosis was a material contributing factor in her husband’s death and she is entitled to
dependent’s benefits. Both Drs. Gaziano and Rasmussen concluded that the decedent’s
occupational exposure was a material contributing factor in his death, however Dr. Rasmussen
found that the respiratory disease was caused in significant part by cigarette smoking, and Dr.
Gaziano also mentioned the smoking history. The Occupational Pneumoconiosis Board found
that occupational pneumoconiosis was not a material contributing factor in the decedent’s death.

        In affirming the claims administrator’s Order, the Office of Judges found that the
Occupational Pneumoconiosis Board’s findings and testimony were supported by a
preponderance of the evidence. The Office of Judges noted that the Occupational
Pneumoconiosis Board carefully considered all the evidence, and that the decedent had a
significant smoking history. It further pointed out that Drs. Gaziano and Rasmussen had
attributed pulmonary impairment to the significant smoking history. The Office of Judges
concluded that the claims administrator correctly rejected Ms. Queen’s request for dependent’s
benefits. The Board of Review reached the same reasoned conclusions in its decision of May 5,
2011. 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.

                                                                                        Affirmed.

ISSUED: February 20, 2013




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

DISSENTING:
Chief Justice Brent D. Benjamin
Justice Margaret L. Workman




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