                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 20, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BRENDA SHAFFER, WIDOW OF                                                      OF WEST VIRGINIA

GARY SHAFFER,
Claimant Below, Petitioner

vs.)   No. 14-0072 (BOR Appeal No. 2048516)
                   (Claim No. 840048354)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CITY OF ELKINS,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Brenda Shaffer, widow of Gary Shaffer, 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 Anna L. Faulkner, its attorney, filed a timely
response.

       This appeal arises from the Board of Review’s Final Order dated December 26, 2013, in
which the Board affirmed a June 24, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 16, 2012,
decision denying Mrs. Shaffer’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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
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circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

         Mr. Shaffer worked as a maintenance worker for the City of Elkins. On April 19, 1984,
Mr. Shaffer was exposed to a chlorine gas leak that struck him in the face. Mr. Shaffer was
immediately hospitalized. He remained in the intensive care unit for seven days due to
respiratory insufficiency and damage to his lungs. Following an additional month of home care,
Mr. Shaffer returned to work and continued to work full-time for the next eighteen years. In
2002, Mr. Shaffer’s respiratory problems had grown progressively worse and he eventually had
to retire. After his retirement, Dominic Gaziano, M.D., evaluated Mr. Shaffer. Dr. Gaziano noted
that Mr. Shaffer had smoked a pack of cigarettes every day for almost twenty years prior to his
chlorine gas exposure. Dr. Gaziano found that x-rays of Mr. Shaffer’s chest showed non-specific
interstitial fibrosis in both lung fields, and he diagnosed Mr. Shaffer with interstitial pulmonary
fibrosis. Dr. Gaziano also evaluated Mr. Shaffer under the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (5th ed. 2002), and the claims administrator
granted Mr. Shaffer a 15% permanent partial disability award based on his evaluation. This
decision was remanded to the claims administrator by the Office of Judges, and it granted Mr.
Shaffer an additional 25% award based on a second evaluation of Dr. Gaziano in which he
utilized the American Medical Association’s Guides to the Evaluation of Permanent Impairment
(4th ed. 1993) in order to determine the extent of Mr. Shaffer’s pulmonary impairment. In Dr.
Gaziano’s second evaluation, he admitted that it was rare for chlorine gas exposure to cause
slow, prolonged deterioration of the lungs. Nevertheless, Dr. Gaziano believed that the gas
exposure had initiated Mr. Shaffer’s pulmonary fibrosis. A CT scan was then taken of Mr.
Shaffer’s chest which confirmed the diagnosis of interstitial pulmonary fibrosis.

        Mr. Shaffer’s pulmonary function continued to decline, and on November 13, 2010, he
passed away. His death certificate listed pulmonary fibrosis as the cause of death. An autopsy
performed the same day by Fulvio R. Franyutti, M.D., confirmed this cause of death. Mrs.
Shaffer then applied for dependent’s benefits based on her husband’s death. Her application was
submitted to Mumtaz U. Zamen, M.D., who found that Mr. Shaffer’s pulmonary fibrosis was not
related to his one-time exposure to chlorine gas. Dr. Zamen also pointed out that Mr. Shaffer had
a history of smoking which was a more likely cause of his pulmonary fibrosis. On March 16,
2012, the claims administrator denied Mrs. Shaffer’s request for dependent’s benefits based on
Dr. Zamen’s report. Gregory J. Fino, M.D., also performed a records review of Mr. Shaffer’s
claim. He found that Mr. Shaffer had died from pulmonary fibrosis, but he suggested that it was
idiopathic. Dr. Fino did not believe that Mr. Shaffer’s exposure to chlorine gas had any effect on
his death. On June 24, 2013, the Office of Judges affirmed the claims administrator’s decision.
The Board of Review affirmed the Order of the Office of Judges on December 26, 2013, leading
Mrs. Shaffer to appeal.

        The Office of Judges concluded that the decedent’s death was not caused by his
occupational exposure to chlorine gas. The Office of Judges based this determination on the
reports of Dr. Zamen and Dr. Fino. The Office of Judges believed that Dr. Zamen and Dr. Fino
had more evidence at their disposal than Dr. Gaziano. The Office of Judges further pointed out
that Mr. Shaffer’s lung function did not decline until almost twenty years after the date of his
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exposure to chlorine gas. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

        The Board of Review’s decision is based on a material misstatement or
mischaracterization of the evidentiary record. Mrs. Shaffer is entitled to dependent’s benefits
based on her husband’s death. She has demonstrated that the compensable conditions of the
claim contributed in a material degree to her husband’s death in accordance with the standard set
out in Bradford v. Workers’ Compensation Commissioner, 185 W. Va. 434, 442, 408 S.E.2d 13,
21 (1991). The evidence in the record shows that Mr. Shaffer suffered an exposure to chlorine
gas. The claims administrator held this claim compensable and several years later granted him a
significant permanent partial disability award under this claim based on Dr. Gaziano’s diagnosis
of interstitial pulmonary fibrosis. Regardless of the tenuous medical connection pointed out by
Dr. Zamen and Dr. Fino between Mr. Shaffer’s chlorine exposure and the development of this
condition, the claims administrator decisions granting an award for this condition became final.
The claims administrator cannot now deny the causal connection between the compensable
injury and pulmonary fibrosis. The entire record, including Dr. Zamen’s and Dr. Fino’s reports,
demonstrates that interstitial pulmonary fibrosis materially contributed to Mr. Shaffer’s death.

       For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement or mischaracterization of particular components of the evidentiary record.
Therefore, the decision of the Board of Review is reversed and remanded with instructions to
grant Mrs. Shaffer’s request for dependent’s benefits based on her husband’s death.

                                                                       Reversed and Remanded.

ISSUED: January 20, 2015

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




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