                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 14, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LOUISE FRANK, WIDOW OF                                                        OF WEST VIRGINIA

CLARENCE S. FRANK (DECEASED),
Claimant Below, Petitioner

vs.)   No. 12-1247 (BOR Appeal No. 2047042)
                   (Claim No. 2008049083)

ALCAN ROLLED PRODUCTS – RAVENSWOOD, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Louise Frank, widow of Clarence S. Frank, by Robert M. Williams, her
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Alcan Rolled Products – Ravenswood, LLC, by H. Toney Stroud, its attorney, filed a timely
response.

        This appeal arises from the Board of Review’s Final Order dated September 20, 2012, in
which the Board affirmed a March 13, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 15, 2009,
decision denying Mrs. Frank’s request for dependent’s benefits relating to 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.

       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. Frank worked for Alcan Rolled Products as an aluminum plant worker. On August 9,
2007, he died. Following his death, Kelli A. Cawley, M.D., found that Mr. Frank had
esthesioneuroblastoma and renal cell carcinoma. Dr. Cawley, nevertheless, believed that Mr.
Frank’s exposure to asbestos could have increased his risk of contracting these malignancies.
Mrs. Frank then filed an application for dependent’s benefits based on Mr. Frank’s death. The
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Occupational Pneumoconiosis Board reviewed Mr. Frank’s case and concluded that occupational
pneumoconiosis did not contribute in a material degree to his death. On April 15, 2009, the
claims administrator denied Mrs. Frank’s application for benefits based on the Occupational
Pneumoconiosis Board’s findings. Donald L. Rasmussen, M.D., then reviewed Mr. Frank’s
records. Dr. Rasmussen found that there was some evidence to support a relationship between
Mr. Frank’s death from renal cancer and his exposure to aluminum dust. Dr. Rasmussen noted
that there was nothing in the record to suggest a respiratory cause of death but there was an
increased incidence of renal cancer among aluminum production workers. John E. Craighead,
M.D., also reviewed Mr. Frank’s records and found that his cancer was not caused or associated
with any alleged exposure to the hazards of occupational pneumoconiosis. Dr. Craighead
indicated that the majority of epidemiological studies found no significant association between
renal cancer and asbestos exposure. Joseph J. Renn III, M.D., finally, reviewed Mr. Frank’s case
and found that his death was the result of metastatic renal cancer which had no clear etiology. s
Renn determined that Mr. Frank did not have occupational pneumoconiosis or asbestosis. Dr.
Renn further found that Mr. Frank’s occupation did not hasten or contribute to his death.

       The Occupational Pneumoconiosis Board then testified in a hearing before the Office of
Judges. The Occupational Pneumoconiosis Board considered the opinions of Dr. Cawley, Dr.
Rasmussen, Dr. Craighead, and Dr. Renn. The Board found that the radiological evidence in the
case revealed no parenchymal opacities, which suggested that Mr. Frank did not have
occupational pneumoconiosis. The Occupational Pneumoconiosis Board found that occupational
pneumoconiosis did not contribute in any material degree to Mr. Frank’s death. The
Occupational Pneumoconiosis Board maintained that Mr. Frank’s death was the result of
metastasized renal cancer. On March 13, 2012, the Office of Judges affirmed the claims
administrator’s decision. The Board of Review affirmed the Order of the Office of Judges on
September 20, 2012, leading Mrs. Frank to appeal.

       The Office of Judges concluded that the Occupational Pneumoconiosis Board’s finding,
that occupational pneumoconiosis did not contribute in a material degree to Mr. Frank’s death,
should be affirmed. The Office of Judges concluded that the findings and testimony of the
Occupational Pneumoconiosis Board were not shown to be clearly wrong. The Office of Judges
found that, even after reviewing the opinions of Dr. Cawley and Dr. Rasmussen, the
Occupational Pneumoconiosis Board maintained that occupational pneumoconiosis did not
contribute in any material degree to Mr. Frank’s death. The Office of Judges also noted that the
Occupational Pneumoconiosis Board found that Dr. Cawley and Dr. Rasmussen’s opinions were
vague and lacked scientific support. 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. Frank has not demonstrated that she is entitled to dependent’s benefits related to Fr.
Frank’s death. Mrs. Frank has not shown that occupational pneumoconiosis contributed in any
material degree to her husband’s death. Bradford v. Workers’ Comp. Comm’r, 185 W. Va. 434,
442, 408 S.E.2d 13, 21 (1991). The Occupational Pneumoconiosis Board found that Mr. Frank
died from complications of renal cancer and that occupational pneumoconiosis did not hasten his
death or prevent him from receiving treatment for his cancer. The opinions of Dr. Cawley and
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Dr. Rasmussen are too speculative in nature to support Mrs. Frank’s application for dependent’s
benefits. The remainder of the record supports the findings of the Occupational Pneumoconiosis
Board.

        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: April 14, 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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