                             STATE OF WEST VIRGINIA

                                                                                  FILED
                          SUPREME COURT OF APPEALS                            December 2, 2014
                                                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
MARGARET LAMBERT,                                                            OF WEST VIRGINIA

WIDOW OF FREEMAN LAMBERT,
Claimant Below, Petitioner

vs.)   No. 14-0164	 (BOR Appeal No. 2048670)
                   (Claim No. 860072792)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CINDAS CREEK ENERGY
AND
CONTRACT COALS, INC.,
Employers Below, Respondents


                             MEMORANDUM DECISION
        Petitioner Margaret Lambert, widow of Freeman Lambert, by Robert Williams, her
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
The West Virginia Office of the Insurance Commissioner, by Jon Snyder, its attorney, filed a
timely response.

       This appeal arises from the Board of Review’s Final Order dated January 27, 2014, in
which the Board affirmed a July 29, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 2, 2011,
decision denying Ms. Lambert’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
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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.

        Ms. Lambert filed a claim for dependent’s benefits following the December 23, 2010,
death of her husband, Freeman. Prior to his death, the decedent was admitted to Beckley
Appalachian Regional Hospital for massive gastrointestinal bleeding. A death summary was
completed by the decedent’s treating physician and listed the decedent’s final diagnoses as
massive gastrointestinal bleeding, respiratory failure, chronic obstructive pulmonary disorder,
thrombocytopenia, and acute renal impairment. The death summary noted that the decedent was
placed on a ventilator solely for the purpose of performing an endoscopy. It was further noted
that the decedent became hypotensive while still on the ventilator as a result of recurrent
gastrointestinal bleeding. Following the deterioration of the decedent’s condition, his family
chose to remove him from the ventilator and he died shortly thereafter. On January 14, 2011, an
amended death certificate was issued listing the cause of death as cardiopulmonary arrest, with
occupational pneumoconiosis listed as an underlying condition.

       On September 13, 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 25%
for occupational pneumoconiosis and determined that prior x-rays suggest a very minimal degree
of occupational pneumoconiosis. On November 2, 2011, the claims administrator denied Ms.
Lambert’s request for dependent’s benefits.

        At a hearing on June 19, 2013, Jack Kinder, M.D., testified on behalf of the Occupational
Pneumoconiosis Board. Dr. Kinder testified that the decedent’s medical record shows that he
developed hypotension associated with gastrointestinal bleeding of unknown etiology and
subsequently died after being removed from a ventilator. He further testified that he cannot
explain why gastrointestinal bleeding is not listed on the decedent’s death certificate and opined
that the decedent’s clinical course shows that gastrointestinal bleeding was the main cause of
death. Further, Dr. Kinder testified that the decedent never received treatment for occupational
pneumoconiosis and would have died in the same manner and at the same time regardless of the
presence of occupational pneumoconiosis.

       In its Order affirming the November 2, 2011, claims administrator’s decision, the Office
of Judges held that the preponderance of the evidence shows that the decedent died as a result of
complications from gastrointestinal bleeding unrelated to any respiratory condition. Ms. Lambert
disputes this finding and asserts that the evidence of record demonstrates that occupational
pneumoconiosis materially contributed to her husband’s death, and that she is therefore entitled
to dependent’s benefits.

       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
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the death.” As noted by the Office of Judges, on appeal Ms. Lambert relies primarily on a report
from Donald Rasmussen, M.D., that was never properly submitted into evidence and apparently
attributes the decedent’s final hospitalization and ultimate death to consequences arising from
occupational pneumoconiosis. Dr. Kinder reviewed Dr. Rasmussen’s report and testified that he
disagrees with Dr. Rasmussen’s conclusions regarding the decedent’s cause of death. Further, the
Office of Judges found that the apparent conclusions of Dr. Rasmussen are unsupported by the
decedent’s medical records. The Office of Judges found that none of the decedent’s medical
records reveal evidence of treatment for occupational pneumoconiosis and noted that the
decedent’s final hospital admission occurred as a result of gastrointestinal bleeding. The Office
of Judges then determined that the decedent’s death certificate is not credible because it fails to
list the conditions identified in the death summary as causes of the decedent’s death. Finally, the
Office of Judges concluded that the evidence of record does not support a finding that
occupational pneumoconiosis materially contributed to the decedent’s death. The Board of
Review reached the same reasoned conclusions in its decision dated January 27, 2014. 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.

ISSUED: December 2, 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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