                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 9, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CONNIE HERNDON, WIDOW OF                                                      OF WEST VIRGINIA

PAUL HERNDON,
Claimant Below, Petitioner

vs.)   No. 13-0059 (BOR Appeal No. 2047448)
                   (Claim No. 2001053909)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PINE CREEK MINING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Connie Herndon, widow of Paul Herndon, by Robert Williams, her attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. The West
Virginia Office of Insurance Commissioner, by Mark Bramble, its attorney, filed a timely
response.

       This appeal arises from the Board of Review’s Final Order dated December 17, 2012, in
which the Board affirmed a June 25, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 21, 2010,
decision which denied a 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
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

         Mr. Herndon, a coal miner, developed occupational pneumoconiosis in the course of his
employment. He was granted a total award of 15% permanent partial disability in his lifetime for
the disease. Mr. Herndon had a long history of chronic lung problems. Between 2003 and his
death in 2009, he was admitted to the hospital numerous times for treatment of pneumonia and
bronchitis as a result of chronic obstructive pulmonary disease and emphysema. An April 21,
2008, chest x-ray revealed extensive emphysematous changes with areas of apparent scarring, a
nodule in the left upper lobe, and a mild right lower lobe infiltration. An x-ray taken in February
of 2009 showed chronic obstructive pulmonary disease with bilateral upper lobe emphysema. A
chest CT taken shortly before his death revealed severe emphysematous changes within both
lungs. It also showed superimposed patchy areas of opacity within the inferior right upper lobe,
right middle lobe, and bilateral lung bases. There were stable areas of parenchymal scarring in
the left upper lobe but no evidence of pulmonary fibrosis. Mr. Herndon passed away on June 28,
2009. His death certificate listed the causes of death as multi-focal pneumonia, occupational
pneumoconiosis, coronary artery disease, hypertension, hyperlipidemia, and nocardia.

        The Occupational Pneumoconiosis Board found that occupational pneumoconiosis was
not a material, contributing factor in Mr. Herndon’s death. After a record review, Dominic
Gaziano, M.D., disagreed with the Board in a letter dated January 25, 2011. He opined that Mr.
Herndon had occupational pneumoconiosis as was shown by interstitial changes consistent with
the disease. He stated that chronic obstructive pulmonary disease or emphysema could also be
attributed to presumptive occupational pneumoconiosis and could be caused by both cigarette
smoking and coal dust exposure. He opined that the fact that Mr. Herndon died of pneumonia
indicates that occupational pneumoconiosis was a major contributing factor in his death because
pulmonary function tests showed severe pulmonary impairment. He opined that the usual mode
of death in someone with end-stage occupational pneumoconiosis is terminal pneumonia and Mr.
Herndon’s residual pulmonary reserve of 30% greatly diminished his ability to survive the
pneumonia. He found that the other causes of death on the death certificate were not significant.

        Donald Rasmussen, M.D., reviewed Mr. Herndon’s records and opined in a letter that
coal mine dust exposure was a major cause of Mr. Herndon’s disabling, fatal lung disease. He
stated that cigarette smoking and coal mine dust exposure can both cause bullous emphysema
and opined that there is no way to distinguish between the effects of cigarette smoke and coal
mine dust. Therefore, both factors must be considered contributing causes in the death. Gregory
Fino, M.D., also performed a record review. He, however, agreed with the findings of the
Occupational Pneumoconiosis Board. He found a cigarette smoking history of fifteen pack years
and determined that Mr. Herndon’s primary lung abnormality was severe bullous emphysema.
Dr. Fino opined that bullous emphysema is unrelated to, and not caused by, occupational dust
exposure. It was noted that a person does not have to be a heavy smoker in order to develop
bullous emphysema. It can be, and often is, hereditary.

       The Occupational Pneumoconiosis Board testified in a hearing before the Office of
Judges on June 6, 2012. Jack Kinder, M.D., testified on behalf of the Board that Mr. Herndon
                                                2
was an underground coal miner for thirty-two years. He ceased smoking in 1981 and had a
fifteen pack year history. Dr. Kinder opined that Mr. Herndon had several lung diseases
including chronic obstructive pulmonary disease and emphysema. He further stated that Mr.
Herndon’s overwhelming disease was bullous emphysema caused by tobacco use and/or
genetics. The minimal, if any, pneumoconiosis identified on x-rays did not contribute to his
death. Bradley Henry, M.D., also of the Occupational Pneumoconiosis Board, concurred.

        The claims administrator denied Mrs. Herndon’s request for dependent’s benefits on July
21, 2010. The Office of Judges affirmed the claims administrator’s denial in its June 25, 2012,
Order. It found that Mr. Herndon suffered from non-work-related bullous emphysema connected
to cigarette smoking and/or genetics. While Drs. Rasmussen and Gaziano opined that
occupational pneumoconiosis played a material, contributing role in his death, the Office of
Judges determined their opinions were discounted by the fact that the doctors reviewing the
claim found minimal, if any, occupational pneumoconiosis present. The Office of Judges
therefore found that a preponderance of the evidence failed to show that occupational
pneumoconiosis either caused or materially contributed to Mr. Herndon’s death.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its December 17, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. The standard for granting dependent’s
benefits is not whether the employee’s death was the result of the occupational disease
exclusively, but whether the occupational disease contributed in any material degree to the death.
Bradford v. Workers’ Compensation Comm’r, 185 W.Va. 434, 408 S.E.2d 13 (1991). The
evidentiary record indicates that occupational pneumoconiosis was not a material, contributing
factor in Mr. Herndon’s death.

        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: June 9, 2014

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

DISSENTING:
Justice Menis E. Ketchum

                                                3
