                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 8, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
PINE RIDGE COAL COMPANY, LLC,                                                 OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 12-1141 (BOR Appeal No. 2046972)
                   (Claim No. 2009068819)

GENEIVE J. MOORE, WIDOW OF
JOHN D. MOORE (DECEASED),
Claimant Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Pine Ridge Coal Company, LLC, by Henry C. Bowen, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review.

        This appeal arises from the Board of Review’s Final Order dated August 27, 2012, in
which the Board reversed a February 22, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 4, 2009,
decision denying the request of Geneive J. Moore, widow of John D. Moore, for dependent’s
benefits based on her husband’s occupational pneumoconiosis related 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Mr. Moore worked as a coal miner for Pine Ridge Coal Company. After a nearly forty-
year career working in the mines, Mr. Moore retired and filed an application for workers’
compensation benefits based on exposure to the hazards of inhaling coal dust. Mr. Moore’s claim
was found compensable, and he was granted a permanent partial disability award based on his
exposure. On April 14, 2008, Mr. Moore died. His death certificate listed the cause of death as
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coronary artery disease with congestive heart failure, emphysema, and bronchopneumonia. Ho
Huang Chang, M.D., then performed an autopsy on Mr. Moore and found that his death was due
to coronary heart disease resulting in congestive heart failure. Dr. Chang also found that
pneumoconiosis was one of the contributing factors in Mr. Moore’s death. Mrs. Moore then filed
an application for dependent’s benefits based on her husband’s death.

        The Occupational Pneumoconiosis Board reviewed Mrs. Moore’s claim and found that
occupational pneumoconiosis was not a material contributing factor in Mr. Moore’s death. The
Occupational Pneumoconiosis Board found that radiographic evidence showed that Mr. Moore
had parenchymal changes consistent with a minimal degree of pneumoconiosis. On September 4,
2009, the claims administrator denied Mrs. Moore’s application for dependent’s benefits based
on the Occupational Pneumoconiosis Board’s recommendation. Dominic Gaziano, M.D., then
reviewed Mr. Moore’s records and found that his pulmonary condition, brought on by coal dust
exposure, prevented him from surviving his cardiac problems. Donald L. Rasmussen, M.D., also
reviewed Mr. Moore’s records and agreed that occupational pneumoconiosis was a material
contributing factor in Mr. Moore’s death. Stephen Bush, M.D., then reviewed Mr. Moore’s
records and found that a minimal amount of the lung parenchyma was affected by coal dust. Dr.
Bush found that Mr. Moore’s occupational pneumoconiosis was too limited to have caused,
contributed to, or hastened his death. David Rosenberg, M.D., also reviewed Mr. Moore’s
records and found that he had a markedly decreased forced expiratory volume to forced vital
capacity (FEV1/FVC) ratio which was not consistent with airflow obstruction related to coal dust
exposure. Dr. Rosenberg found that Mr. Moore’s death was related to coronary insufficiency and
that his pulmonary problems were related to smoking. The Occupational Pneumoconiosis Board
then testified before the Office of Judges and repeated its findings that occupational
pneumoconiosis did not contribute in any material degree to Mr. Moore’s death. The
Occupational Pneumoconiosis Board stated that Mr. Moore’s death was related to coronary heart
disease. On February 22, 2012, the Office of Judges affirmed the claims administrator’s decision.
But the Board of Review reversed the Order of the Office of Judges on August 27, 2012, and
granted Mrs. Moore’s request for dependent’s benefits, leading Pine Ridge Coal Company to
appeal.

        The Office of Judges concluded that Mr. Moore’s mild coal workers’ pneumoconiosis did
not contribute in any material degree to his death. In reaching this determination, the Office of
Judges relied on Dr. Rosenberg’s opinion. The Office of Judges found that Dr. Rosenberg’s
report showed that Mr. Moore had chronic obstructive pulmonary disease but he demonstrated
that it was related to Mr. Moore’s significant history of cigarette smoking. The Office of Judges
further found that Dr. Rosenberg’s report showed that Mr. Moore died from coronary
insufficiency superimposed on smoking related chronic obstructive pulmonary disease. The
Office of Judges determined that Dr. Rosenberg confirmed that Mr. Moore’s mild
pneumoconiosis did not cause, contribute to, or hasten his death. The Office of Judges noted that
the Occupational Pneumoconiosis Board found that Dr. Rosenberg’s report was particularly
good. The Office of Judges considered the reports of Dr. Gaziano and Dr. Rasmussen but found
that the Occupational Pneumoconiosis Board disagreed with their opinions.


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        The Board of Review then reversed the Order of the Office of Judges because it
concluded that the decision of the Occupational Pneumoconiosis Board was clearly wrong in
view of the reliable, probative, and substantial evidence on the whole record. The Board of
Review found that occupational pneumoconiosis was a material contributing factor in Mr.
Moore’s death and that Mrs. Moore was entitled to dependent’s benefits. The Board of Review
based its decision on Dr. Chang’s autopsy report which listed occupational pneumoconiosis as
one of the contributing factors in Mr. Moore’s death.

        The decision of the Board of Review was based on a material mischaracterization of the
significance of Dr. Chang’s autopsy report. Although Dr. Chang found that occupational
pneumoconiosis was one contributing factor in Mr. Moore’s death, this finding alone does not
rebut the findings of the Occupational Pneumoconiosis Board. In Fenton Art Glass Co. v. West
Virginia Office of Insurance Commissioner, this Court held that the findings of the Occupational
Pneumoconiosis Board should be accorded “considerable deference on medical matters related to
the diagnosis and, if any, impairment related to occupational pneumoconiosis.” 222 W. Va. 420,
431, 664 S.E.2d 761, 772 (2008). In this case, the Occupational Pneumoconiosis Board
considered Mr. Moore’s medical records including Dr. Chang’s autopsy report but found that
occupational pneumoconiosis was not a materially contributing factor in Mr. Moore’s death. The
Occupational Pneumoconiosis Board found that Mr. Moore died from coronary heart disease and
further found that his autopsy showed only a minimal amount of pneumoconiosis. The
Occupational Pneumoconiosis Board repeated this finding in a hearing before the Office of
Judges, and its opinion was supported by the reports of Dr. Bush and Dr. Rosenberg. Mrs. Moore
has not demonstrated that she is entitled to dependent’s benefits based on her husband’s death
because the evidence in the record shows that occupational pneumoconiosis did not contribute in
any material degree to Mr. Moore’s death. Bradford v. Workers’ Comp. Comm’r, 185 W. Va.
434, 442, 408 S.E.2d 13, 21 (1991).

       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 for decision reinstating
the February 22, 2012, Order of the Office of Judges.

                                                                      Reversed and Remanded.

ISSUED: April 8, 2014

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

DISSENTING:
Justice Margaret L. Workman
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