                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
MARY GRAY, WIDOW OF                                                           OF WEST VIRGINIA

EARL D. GRAY (DECEASED),
Claimant Below, Petitioner

vs.)   No. 12-0871 (BOR Appeal No. 2046742)
                   (Claim No. 940066608)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MOUNTAINEER MINING MANAGEMENT, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Mary Gray, widow of Earl D. Gray, by Robert M. Williams, her attorney,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. The West
Virginia Office of Insurance Commissioner, by Jon H. Snyder, its attorney, filed a timely
response.

        This appeal arises from the Board of Review’s Final Order dated June 27, 2012, in which
the Board affirmed a December 14, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s December 21, 2009,
decision denying Mrs. Gray’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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Gray worked as a coal miner for Mountaineer Mining Management, Inc., for over
twenty-five years. Throughout the course of his employment he was exposed to the hazards of
occupational pneumoconiosis and was granted a 30% permanent partial disability award in
several separate exposure claims. In 2005, Mr. Gray was diagnosed with colon cancer and
underwent chemotherapy, which was unsuccessful. On July 3, 2008, Mr. Gray died, and his
death certificate listed the cause of death as metastatic colon cancer to the lungs and chronic
obstructive pulmonary disease. The report from the autopsy performed at Charleston Area
Medical Center showed severe emphysema and fibrosis bilaterally throughout the lungs. The
report also noted the presence of tumor cells in the lungs. But the report stated that the immediate
cause of death could not be accurately assessed because the autopsy was restricted to the lungs.
Mrs. Gray then filed an application for dependent’s benefits based on her husband’s death. The
Occupational Pneumoconiosis Board found that occupational pneumoconiosis was not a material
contributing factor in Mr. Gray’s death. On December 21, 2009, the claims administrator denied
Mrs. Gray’s application for dependent’s benefits based on the Occupational Pneumoconiosis
Board’s findings.

         Dominic Gaziano, M.D., and Donald L. Rasmussen, M.D., then reviewed Mrs. Gray’s
claim. Dr. Gaziano found that Mr. Gray’s death was primarily related to colon cancer that had
metastasized in his lungs. But Dr. Gaziano believed that his immediate death was hastened
because of occupational pneumoconiosis. Dr. Rasmussen also found that occupational
pneumoconiosis was a material contributing cause of Mr. Gray’s death. He noted, however, that
Mr. Gray had a history of cigarette smoking that contributed to his respiratory problems. Erika C.
Crouch, M.D., then reviewed Mrs. Gray’s claim and found the severity of Mr. Gray’s
emphysema ruled out coal dust exposure and implicated smoking as a major cause of Mr. Gray’s
respiratory problems. Dr. Crouch found that coal dust exposure could not have caused,
contributed, or hastened Mr. Gray’s death. The Occupational Pneumoconiosis Board then
testified in a hearing before the Office of Judges. The Occupational Pneumoconiosis Board
disagreed with the assessments of Dr. Gaziano and Dr. Rasmussen. Instead, the Occupational
Pneumoconiosis Board found that Mr. Gray’s death was related to colon cancer which
metastasized in the lung, causing it to collapse. The Occupational Pneumoconiosis Board found
that the presence of occupational pneumoconiosis did not alter Mr. Gray’s life span in any
material way. On December 14, 2011, the Office of Judges affirmed the claims administrator’s
decision. The Board of Review affirmed the Order of the Office of Judges on June 27, 2012,
leading Mrs. Gray to appeal.

        The Office of Judges concluded that the Occupational Pneumoconiosis Board was correct
to find that occupational pneumoconiosis was not a material contributing factor in Mr. Gray’s
death. The Office of Judges found that Mr. Gray had occupational pneumoconiosis, but it also
found that he had colon cancer which had metastasized to the lung. The Office of Judges
determined that the cancer in Mr. Gray’s lung was not primarily a lung cancer. The Office of
Judges based this determination on the Occupational Pneumoconiosis Board’s findings and on
Dr. Crouch’s report. The Office of Judges considered Dr. Gaziano’s and Dr. Rasmussen’s reports
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but did not rely on their opinions. 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. Gray has not demonstrated that she is entitled to dependent’s benefits based on her
husband’s death. Mrs. Gray has not established that occupational pneumoconiosis contributed in
any material degree to Mr. Gray’s death. Bradford v. Workers’ Comp. Comm’r, 185 W. Va. 434,
442, 408 S.E.2d 13, 21 (1991). The evidence in the record shows that Mr. Gray had colon cancer
which had metastasized in his lungs. The findings of both the Occupational Pneumoconiosis
Board and Dr. Crouch show that Mr. Gray’s death was related to his colon cancer and not to
occupational pneumoconiosis.

        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: March 20, 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




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