                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 14, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
VIOLET BAYS, WIDOW OF                                                         OF WEST VIRGINIA

JAMES A. BYRD (DECEASED),
Claimant Below, Petitioner

vs.)   No. 13-0826 (BOR Appeal No. 2048039)
                    (Claim No. 2011020533)


UNION CARBIDE CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Violet Bays, widow of James A. Byrd (deceased), appearing pro se, appeals
the decision of the West Virginia Workers’ Compensation Board of Review. Union Carbide
Corporation, by Ann B. Rembrandt, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 28, 2013, in which
the Board affirmed a December 13, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s August 1, 2011, decision
denying Mrs. Bays’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.

        Mr. Byrd worked for Union Carbide Corporation as a plant worker. Mr. Byrd passed
away on November 6, 2011, and Mrs. Bays, his wife, filed an application requesting dependent’s
benefits. The Occupational Pneumoconiosis Board found that occupational pneumoconiosis was
not a material contributing factor in the decedent’s death and that he most likely died of

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metastatic melanoma. The Occupational Pneumoconiosis Board further found that there was no
evidence of any primary lung cancer. The death certificate stated that the immediate cause of
death was respiratory failure and the underlying cause was chronic obstructive pulmonary
disease. The death summary stated the decedent’s final diagnoses were metastatic neoplastic
process of unknown primary with metastasis to the liver, lung, and spine; chronic unrelenting
nausea secondary to number one; chronic renal failure with acute exacerbation; chronic
obstructive pulmonary disease; and coronary artery disease. Randall W. Peterson, M.D.,
Sulaiman B. Hasan, M.D., Fadi Alkhankan, M.D., and Leonard A. Fichter, D.O., completed the
same check form opining that asbestosis/occupational pneumoconiosis was a contributing factor
to the respiratory failure that caused the decedent’s death. The claims administrator denied Mrs.
Bays’s request for dependent’s benefits because occupational pneumoconiosis did not cause nor
was a material contributing factor in the decedent’s death.

        The Office of Judges affirmed the claims administrator’s decision and held that
occupational pneumoconiosis did not cause or contribute in a material degree to the decedent’s
death. The Board of Review affirmed the Order of the Office of Judges. On appeal, Mrs. Bays
disagrees and asserts that she has submitted evidence signed by various physicians that treated
the decedent for long periods of time and found that the asbestosis was a contributing factor to
his respiratory failure that caused his death on November 6, 2009. She further argues that the
doctors agreed this disease was a progressive occupational disease and that Randall Peterson,
M.D., his primary care physician, found the asbestosis/occupational disease a contributing factor
to the respiratory failure which caused his death. She further asserts that the Occupational
Pneumoconiosis Board found the decedent had a total of 40% impairment. Union Carbide
Corporation maintains that the Office of Judges was correct in not relying on the check-the-box
forms completed by Drs. Peterson, Hasan, Alkhankan, and Fichter because the Occupational
Pneumoconiosis Board was not cross-examined regarding these forms. Furthermore, it maintains
since the Occupational Pneumoconiosis Board was not questioned about these forms that the
forms cannot be relied upon in resolving whether occupational pneumoconiosis was a material
contributing factor of the decedent’s death. It argues that the forms are also insufficient as a
matter of law to support an award of benefits and that the forms only stated that
asbestosis/occupational pneumoconiosis contributed to the decedent’s death. Union Carbide
Corporation further argues that in order to receive benefits, occupational pneumoconiosis must
be a material contributing factor in the decedent’s death.

        The Office of Judges relied on the Occupational Pneumoconiosis Board’s findings and
testimony. The Occupational Pneumoconiosis Board considered Mrs. Bays’s claim on June 16,
2011, and examined the decedent on June 4, 1997, where he was granted a 40% permanent
partial disability award. The Occupational Pneumoconiosis Board reviewed numerous records
and concluded that the x-rays were consistent with asbestosis and that occupational
pneumoconiosis was not a material contributing factor in the decedent’s death. The Occupational
Pneumoconiosis Board testified on December 4, 2012, and its findings and conclusions remained
the same. The Office of Judges noted that the decedent had numerous medical issues, including
renal failure, metastatic cancer, and chronic kidney disease Stage IV, with a creatinine of 2.53.
The decedent had Stage II B malignant melanoma in May of 2005 and had many nodules that
appeared within a six month time frame in multiple areas including bone, liver, and lung. The
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Occupational Pneumoconiosis Board concluded that the decedent’s metastatic melanoma was
most likely unrelated to his occupational exposure and that he had most likely died from his
metastatic melanoma. The Office of Judges concluded that there was no evidence of any primary
lung cancer and that the decedent had severe chronic obstructive pulmonary disease and a heart
problem. The Office of Judges held that a preponderance of the evidence does not support a
conclusion that occupational pneumoconiosis either caused or contributed in a material degree to
the decedent’s death.

       This Court agrees with the reasoning of the Office of Judges and the conclusions of the
Board of Review in reliance on the Occupational Pneumoconiosis Board’s findings and
conclusions. The Occupational Pneumoconiosis Board found no evidence of occupational
pneumoconiosis contributing in a material degree or causing the decedent’s death. The
Occupational Pneumoconiosis Board opined that the decedent most likely died of metastatic
melanoma and that his occupational exposure did not play a role in his death. The Occupational
Pneumoconiosis Board found no evidence of any primary lung cancer. This Court affirms the
Board of Review in reliance on the Occupational Pneumoconiosis Board and denial Mrs. Bays’s
request for dependent’s benefits.

        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: November 14, 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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