                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 20, 2013

                                                                            RORY L. PERRY II, CLERK

ELOISE DANKO, WIDOW OF                                                    SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
GEORGE DANKO,
Claimant Below, Petitioner

vs.)   No. 11-0870	 (BOR Appeal No. 2045316)
                    (Claim No. 2001037760)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PECHINEY ROLLED PRODUCTS, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Eloise Danko, by Robert Williams, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alcan Rolled Products, LLC, by H.
Toney Stroud, 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 a November 3, 2010, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s August 27, 2008, decision
denying Ms. Danko’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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        Mr. Danko worked for Pechiney Rolled Products for thirty-five years. He had received a
prior 10% permanent partial disability award for occupational pneumoconiosis. He passed away
on July 4, 2007. On August 27, 2008, the claims administrator denied Ms. Danko’s request for
dependent’s benefits.

        The Office of Judges held that the evidence did not demonstrate that occupational
pneumoconiosis played a material contributing role in the death of Mr. Danko. On appeal, Ms.
Danko 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. Drs. Gaziano and Rasmussen
concluded that the decedent’s occupational exposure to asbestos was sufficient to have caused or
contributed to the development of Mr. Danko’s lung cancer. Drs. Craighead and Renn disagreed
and found that asbestosis must be present to attribute lung cancer to occupational exposure, and
asbestosis was not present. The Occupational Pneumoconiosis Board found that no asbestos
fibers were found during the autopsy, nor was there evidence of asbestosis in this case.

       In affirming the claims administrator’s Order, the Office of Judges found that the
Occupational Pneumoconiosis Board’s findings and testimony were not clearly wrong to
conclude that occupational pneumoconiosis did not play a material contributing role in the
decedent’s death. The Occupational Board’s chairman, Dr. Kinder, testified that the largest body
of knowledge asserts that asbestosis is necessary to attribute a patient’s occupational exposure to
lung cancer. The Office of Judges found that the decedent did not have asbestosis or physical
evidence of asbestos exposure. It concluded that the preponderance of the evidence did not
support Ms. Danko’s application 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

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


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