                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 12, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
SANDRA D. SINES, WIDOW OF                                                     OF WEST VIRGINIA

JIMMIE DENNIS SINES
Claimant Below, Petitioner

vs.)   No. 12-1234 (BOR Appeal No. 2047030)
                   (Claim No. 2010135591)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

JAL COAL COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Sandra D. Sines, widow of Jimmie Dennis Sines, by Robert L. Stultz, her
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
The West Virginia Office of Insurance Commissioner, by Mark A. Bramble, its attorney, filed a
timely response.

       This appeal arises from the Board of Review’s Final Order dated September 21, 2012, in
which the Board affirmed a March 21, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 30,
2010, decision which rejected the claim 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. Sines, a coal miner, developed occupational pneumoconiosis in the course of his
employment. He was granted a total award of 50% permanent partial disability in his lifetime.
He was also awarded permanent total disability benefits in 1994. Unfortunately, Mr. Sines
developed lung cancer toward the end of his life. By the time it was discovered, the disease had
already progressed to stage IV and had metastasized to his brain, stomach, and liver. Charles
Beall, M.D.,’s March 11, 2010, treatment note indicates that the decedent was not a candidate for
surgery or radiation therapy. Dr. Beall offered the option of chemotherapy to treat some of the
symptoms with the understanding that it would not cure the cancer. Mr. Sines chose to forego
chemotherapy and instead enrolled in a hospice program. He passed away on May 12, 2010, at
the age of sixty-eight. His cause of death was determined to be lung cancer and coronary artery
disease. Mr. Sines’s widow’s application for dependent’s benefits was rejected by the claims
administrator on November 30, 2010.

        The Occupational Pneumoconiosis Board reviewed Mr. Sines’s case and determined that
occupational pneumoconiosis was not a material, contributing factor in his death. In a letter dated
April 20, 2011, Frank Scattaregia, M.D., disagreed. He opined that occupational pneumoconiosis
played a part in Mr. Sines’s death by preventing him from undergoing aggressive treatment of
his lung cancer. Gregory Fino, M.D., agreed with the Occupational Pneumoconiosis Board in his
August 19, 2011, letter. He noted that Mr. Sines was diagnosed with lung cancer that had
unfortunately metastasized to his brain. He also suffered from ischemic heart disease and
stomach cancer. Dr. Fino found that given Mr. Sines’s condition, there was no aggressive
treatment available. He determined that chemotherapy would not have prolonged his life, and
therapy was withheld for no other reason. Dr. Fino concluded that occupational pneumoconiosis
played no role in Mr. Sines’s death as his lung cancer was caused by cigarette smoking.

        The Occupational Pneumoconiosis Board testified in a hearing before the Office of
Judges on January 18, 2012. Jack Kinder, M.D., opined that Mr. Sines died as the result of
metastatic cigarette-caused lung cancer. Occupational pneumoconiosis was determined to have
played no role in his death. Dr. Kinder reiterated that Mr. Sines was diagnosed with lung cancer
that had metastasized to his brain, stomach, and liver by the time it was discovered. He received
radiation treatment but declined chemotherapy. It was Dr. Kinder’s opinion that Dr. Scattaregia
was incorrect. Mr. Sines did not undergo aggressive therapy, because there was no therapy
available to treat his condition. Bradley Henry, M.D., and John Willis, M.D., also of the
Occupational Pneumoconiosis Board, concurred with Dr. Kinder’s testimony.

       The Office of Judges affirmed the claims administrator’s rejection of the claim in its
March 21, 2012, Order. It found that a preponderance of the evidence showed that occupational
pneumoconiosis did not play a material, contributing role in Mr. Sines’s death. The opinion of
the Occupational Pneumoconiosis Board that he died as the result of metastatic cigarette-caused
lung cancer was determined to be persuasive. Dr. Fino’s opinion, that the cancer was so
advanced when it was discovered that no aggressive therapy could have been provided, was also
found to be persuasive, because it was reflected in Mr. Sines’s treatment records. It was
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determined that Dr. Scattaregia’s opinion was less persuasive due to the advanced stage of the
cancer at the time it was discovered and Dr. Beall’s March 11, 2010, medical report which
revealed that Mr. Sines declined chemotherapy.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 21, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. The standard for granting dependents’
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 Commissioner, 185 W.Va. 434, 408 S.E.2d 13 (1991). The
evidentiary record indicates that Mr. Sines died as a result of metastatic cigarette-caused lung
cancer. By the time the disease was discovered, it was so far advanced that there was no
treatment available. Occupational pneumoconiosis did not contribute in any material degree to
Mr. Sines’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: March 12, 2014

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




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