                                 STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS                                       FILED
                                                                                          February 5, 2013

                                                                                       RORY L. PERRY II, CLERK

ESTELLA PAUGH, WIDOW OF WILLARD PAUGH,                                               SUPREME COURT OF APPEALS

                                                                                         OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)    No. 11-0712	 (BOR Appeal No. 2045182)
                    (Claim No. 2005038598)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

EASTERN ASSOCIATED COAL CORPORATION,
Employer Below, Respondent


                                  MEMORANDUM DECISION
       Petitioner Estella Paugh, by Robert Stultz, her attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Eastern Associated Coal Corporation, by
Ann Rembrandt1, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 29, 2011, in
which the Board affirmed a September 21, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 8, 2005,
decision denying Ms. Paugh’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

1
  On April 18, 2012, Ms. Rembrandt withdrew from the representation of Eastern Associated Coal Corporation.
Eastern Associated Coal is now represented by Henry Bowen.
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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Paugh passed away on December 10, 2004. Although the Occupational
Pneumoconiosis Board found that Mr. Paugh suffered from occupational pneumoconiosis, on
October 11, 2005, it found that occupational pneumoconiosis was not a material contributing
factor to his death. On May 29, 2009, Dr. Oesterling reviewed Mr. Paugh’s medical records. He
noted Mr. Paugh’s sixty-year smoking habit, and found that his death was attributable to lung
cancer caused by smoking cigarettes. Dr. Oesterling agreed with the conclusions of the
Occupational Pneumoconiosis Board, and stated that exposure to coal dust did not contribute to
Mr. Paugh’s death. Dr. Fino performed a medical records review on January 28, 2010. He also
noted Mr. Paugh’s significant history of cigarette smoking, and found that Mr. Paugh’s death
was caused by lung cancer attributable to cigarette smoking. Dr. Fino stated that there is nothing
in the medical record to suggest that occupational pneumoconiosis caused or contributed to Mr.
Paugh’s death. At an August 4, 2010, Occupational Pneumoconiosis Board hearing, the
Occupational Pneumoconiosis Board stated that occupational pneumoconiosis did not play a
material role in Mr. Paugh’s death, which was caused by lung cancer attributable to cigarette
smoking. The Occupational Pneumoconiosis Board further stated that occupational exposure did
not hinder or delay Mr. Paugh’s cancer diagnosis or treatment. Finally, the Occupational
Pneumoconiosis Board stated that there is nothing linking Mr. Paugh’s death or development of
lung cancer to occupational exposure.

       In its Order affirming the November 8, 2005, claims administrator’s decision, the Office
of Judges held that Ms. Paugh is not entitled to dependent’s benefits because the evidence of
record does not demonstrate that occupational pneumoconiosis contributed in any material way
to Mr. Paugh’s death. Ms. Paugh disputes this finding and asserts that the evidence of record
demonstrates that occupational pneumoconiosis materially contributed to her husband’s death.

        The Office of Judges held that the evidence of record establishes that Mr. Paugh suffered
from occupational pneumoconiosis, but that to be eligible for dependent’s benefits, Ms. Paugh
must demonstrate that occupational pneumoconiosis materially contributed to her husband’s
death pursuant to West Virginia Code § 23-4-10 (2010). The Office of Judges found that the
record indicates that Mr. Paugh smoked cigarettes for sixty years, and at one time smoked as
much as three packs per day. The Office of Judges further found that every physician’s report in
the record, including that of the Occupational Pneumoconiosis Board, concluded that Mr.
Paugh’s death was the result of metastatic lung cancer secondary to cigarette smoking. The
Office of Judges also found that every physician who reviewed Mr. Paugh’s medical records
concluded that occupational pneumoconiosis did not cause or contribute to his death in any way.
Finally, the Office of Judges held that there is no medical evidence of record connecting Mr.
Paugh’s death to occupational pneumoconiosis. The Board of Review reached the same reasoned
conclusions in its decision of March 29, 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
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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 5, 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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