                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 12, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ALICE THOMAS,                                                                 OF WEST VIRGINIA

WIDOW OF JOHN THOMAS,
Claimant Below, Petitioner

vs.)   No. 13-1060	 (BOR Appeal No. 2048347)
                   (Claim No. 920039767)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

KEYSTONE SERVICE INDUSTRIES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Alice Thomas, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by
Mary Rich Maloy, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 26, 2013, in
which the Board affirmed an April 4, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 5, 2012,
decision denying Ms. Thomas’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
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
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        Ms. Thomas filed a claim for dependent’s benefits following the June 5, 2011, death of
her husband, John. Prior to his death, the decedent was diagnosed with metastatic lung cancer.
He had also been diagnosed with end-stage renal disease, diabetes mellitus, hypertension,
hyperlipidemia, chronic obstructive pulmonary disease, occupational pneumoconiosis, and
congestive heart failure. The decedent’s death certificate lists the cause of death as metastatic
lung cancer, and lists coal worker’s pneumoconiosis, end-stage renal disease, and diabetes
mellitus as secondary conditions. On November 3, 2011, the Occupational Pneumoconiosis
Board concluded that occupational pneumoconiosis did not materially contribute to the
decedent’s death. The Occupational Pneumoconiosis Board noted that the decedent received a
lifetime award of 20% for occupational pneumoconiosis, and determined that x-rays obtained on
February 23, 1993, show a minimal degree of occupational pneumoconiosis with no progression
from an October 8, 1984, study. On January 5, 2012, the claims administrator denied Ms.
Thomas’s application for dependent’s benefits.

        At a hearing on February 20, 2013, the members of the Occupational Pneumoconiosis
Board testified that occupational pneumoconiosis did not materially contribute to the decedent’s
death. Jack Kinder, M.D., testified on behalf of the Occupational Pneumoconiosis Board that
occupational pneumoconiosis did not cause the decedent’s lung cancer, did not delay his cancer
diagnosis, and did not hamper his cancer treatment. Dr. Kinder further testified that the
decedent’s cancer was metastatic and opined that the decedent would have died as a result of the
metastatic cancer regardless of coal dust exposure. Finally, Dr. Kinder testified that the
secondary conditions listed on the death certificate, namely occupational pneumoconiosis, end-
stage renal disease, and diabetes mellitus, did not materially contribute to the decedent’s death
and were listed on the death certificate simply as diagnoses present at the time of death. In its
Order affirming the January 5, 2012, claims administrator’s decision, the Office of Judges held
that the preponderance of the evidence fails to establish that occupational pneumoconiosis
materially contributed to the decedent’s death.

        In Bradford v. Workers’ Compensation Comm’r, Syl. Pt. 3, 185 W.Va. 434, 408 S.E.2d
13 (1991), this Court held that in order to establish entitlement to dependent’s benefits, a
claimant must show that an occupational disease or injury “contributed in any material degree to
the death.” The Office of Judges found that the evidence of record establishes that the decedent
died as a result of metastatic lung cancer. The Office of Judges further found that the
Occupational Pneumoconiosis Board’s conclusion that occupational pneumoconiosis did not
materially contribute to the decedent’s death is credible. The Office of Judges took note of the
Occupational Pneumoconiosis Board’s finding that the decedent’s death certificate listed the
cause of death as metastatic lung cancer, and further noted that Dr. Kinder opined that metastatic
lung cancer, and not occupational pneumoconiosis, was solely responsible for the decedent’s
death. The Board of Review reached the same reasoned conclusions in its decision of September
26, 2013. 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: November 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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