                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
EVELYN KINSER, WIDOW OF                                                        November 20, 2013
                                                                            RORY L. PERRY II, CLERK
ORVIL KINSER, DECEASED                                                    SUPREME COURT OF APPEALS

Claimant Below, Petitioner                                                    OF WEST VIRGINIA




vs.)   No. 12-0262 (BOR Appeal No. 2046191)
                   (Claim No. 880066295)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PENNY’S TRUCKING, INC.,
Employer Below, Respondent

                             MEMORANDUM DECISION

      Petitioner Evelyn Kinser, by Reginald D. Henry, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Mary Rich Maloy, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 31, 2012, in
which the Board affirmed a July 27, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 12, 2009,
Order which denied Mrs. Kinser’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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        Mr. Kinser was employed as a coal truck driver by Penny’s Trucking, Inc. for nineteen
years. Mr. Kinser died on January 12, 2009, and his death certificate list his immediate cause of
death as end stage chronic obstructive pulmonary disease with secondary causes being coronary
artery disease, sleep apnea, atrial fibrillation, and diabetes. The claims administrator denied Mrs.
Kinser’s request for dependent’s benefits, stating that occupational pneumoconiosis was neither
the cause of nor a material factor in Mr. Kinser’s death.

       The Office of Judges held that occupational pneumoconiosis was not a material
contributing factor in the decedent’s death. Mrs. Kinser disagrees and asserts that the
Occupational Pneumoconiosis Board was wrong about the amount of impairment attributable to
occupational pneumoconiosis; therefore, their opinion should be rejected. The West Virginia
Office of Insurance Commissioner argues that the record does not support that Mr. Kinser had a
substantial pulmonary impairment due to occupational pneumoconiosis at the time of his death.
On March 3, 2002, the Office of Judges ordered that Mr. Kinser receive an additional 55%
permanent partial disability award due to occupational pneumoconiosis, for a total of 85% in
permanent partial disability awards due to occupational pneumoconiosis. On April 7, 2010, Dr.
Rasmussen opined that Mr. Kinser suffered from a progressively disabling and ultimately fatal
chronic lung disease, which was primarily caused by his cigarette smoking and coal mine dust
exposure. He stated that the coal dust exposure was a material contributing cause in Mr. Kinser’s
death.

         On October 1, 2010, Dr. Fino opined that Mr. Kinser died as a result of sepsis, and that
his underlying lung disease was not a material contributing factor in Mr. Kinser’s death.
Members of the Occupational Pneumoconiosis Board testified that Mr. Kinser’s x-rays showed
minimal to no evidence of occupational pneumoconiosis and that he died from sepsis. Dr. Kinder
testified that Mr. Kinser would have died regardless of his coal dust exposure and opined that the
coal dust exposure was not a material contributing factor. The Office of Judges noted that Dr.
Fino observed that Mr. Kinser had a very fixed obstructive defect, which did not sound like a
progressive smoking related disease or progressive coal workers’ pneumoconiosis. The Office of
Judges held that occupational pneumoconiosis was not a material contributing factor in Mr.
Kinser’s death. The Board of Review reached the same reasoned conclusions in its decision of
January 31, 2012. 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
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.




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ISSUED: November 20, 2013


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




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