                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
BRENDA FRYE, WIDOW OF                                                         September 10, 2013
                                                                            RORY L. PERRY II, CLERK
HARRY G. FRYE (DECEASED),                                                 SUPREME COURT OF APPEALS

Claimant Below, Petitioner                                                    OF WEST VIRGINIA




vs.)   No. 11-1603 (BOR Appeal No. 2045987)
                   (Claim No. 990027505)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CANNELTON INDUSTRIES, INC.,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner Brenda Frye, widow of Harry G. Frye (deceased), by G. Patrick Jacobs, her
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
The West Virginia Office of the Insurance Commissioner, by Brandolyn N. Felton-Ernest, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated November 7, 2011, in
which the Board affirmed an April 18, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 19, 2009,
Order denying 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.


                                                1
        Mr. Frye retired from Cannelton Industries. On December 12, 1998, the Occupational
Pneumoconiosis Board, in Mr. Frye’s living claim, found no more than 5% pulmonary functional
impairment due to occupational pneumoconiosis. Mr. Frye died March 4, 2008. Mr. Frye’s death
certificate, signed by Dr. Justin Cohen on March 12, 2008, listed the cause of death as squamous
cell carcinoma of the lung with other significant conditions being anorexia, anemia of chronic
disease and COPD. Ms. Frye filed an application for dependent’s benefits on February 9, 2010.
On October 19, 2009, the claims administrator denied dependent’s benefits because occupational
pneumoconiosis did not cause nor materially contribute to Mr. Frye’s death. Ms. Frye appealed
and argues that the Occupational Pneumoconiosis Board ignored her testimony and the findings
of anthracosis and siderosis in the lung autopsy. The West Virginia Office of Insurance
Commissioner argues that the evidence of record does not establish that the findings of the
Occupational Pneumoconiosis Board were clearly wrong, and that Ms. Frye did not meet the
burden of proof to establish that occupational pneumoconiosis did cause or materially contribute
to Mr. Frye’s death.

       The Office of Judges found that occupational pneumoconiosis did not cause nor
materially contribute to Mr. Frye’s death. On February 9, 2010, Ms. Frye testified that she
believed occupational pneumoconiosis was a material factor in her husband’s death. However,
she also indicated that her husband had been a smoker for at least twenty years of their forty-
seven year marriage and that he had smoked a pack a day when he was younger. The autopsy
revealed that Mr. Frye had squamous cell carcinoma, metastasis, acute pneumonia, fibrinous
adhesions, anthracosis, siderosis, and chronic obstructive pulmonary disease with chronic
bronchitis and pulmonary emphysema.

       On August 25, 2009, the Occupational Pneumoconiosis Board concluded that
occupational pneumoconiosis was not a material contributing factor in Mr. Frye’s death. The
Occupational Pneumoconiosis Board noted that Mr. Frye’s x-rays from December 22, 1998, May
16, 1995, and December 16, 1981, all showed only a minimal degree of nodular fibrosis
consistent with occupational pneumoconiosis. In his report of November 18, 2009, Dr. Fino
found no evidence of occupational pneumoconiosis, and opined that the cause of death was lung
cancer. At the Occupational Pneumoconiosis Board hearing on February 16, 2011, the
Occupational Pneumoconiosis Board found that occupational pneumoconiosis was not a
contributing factor in Mr. Frye’s death.

       The Office of Judges found that occupational pneumoconiosis was not a material
contributing factor in the Mr. Frye’s death. In its decision, the Office of Judges noted that the
Occupational Pneumoconiosis Board concluded that occupational pneumoconiosis was not a
material contributing factor in the Mr. Frye’s death. Further, the Office of Judges noted that the
autopsy showed squamous cell carcinoma, typically caused by cigarette smoking, and no
evidence that Mr. Frye had occupational pneumoconiosis. The Board of Review agreed with the
findings and conclusions of the Office of Judges in its Order of November 7, 2011. We agree
with the reasoning and conclusions of the Board of Review.


                                                2
        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: September 10, 2013

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

DISSENTING:
Justice Menis E. Ketchum




                                                3
