                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                 FILED
LILLIAN ADKINS, WIDOW,                                                          May 16, 2013
ROBERT L. ADKINS, DECEASED                                                  RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                    OF WEST VIRGINIA



vs.)   No. 11-1255 (BOR Appeal No. 2045594)
                    (Claim No. 860043112)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

BECKLEY COAL MINING COMPANY,
Employer Below, Respondent


                 RECOMMENDED MEMORANDUM DECISION
       Petitioner Robert L. Adkins, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The Insurance Commissioner of
West Virginia as Administrator of the old Fund, by Jon H. Snyder, its attorney, filed a timely
response.

       This appeal arises from the Board of Review’s Final Order dated August 10, 2011, in
which the Board affirmed a February 15, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 6, 2008,
order. 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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        In this case, Mr. Adkins worked for a time as a coal miner for Beckley Coal Mining
Company. On February 17, 1987, Mr. Adkins was awarded a 20% pulmonary functional
impairment attributable to occupational pneumoconiosis. Mr. Adkins had an extensive history of
smoking. Mr. Adkins died on November 30, 2007. The cause of death was cardiorespiratory
arrest, COPD, coal workers pneumoconiosis with other conditions of hypoxia and right hilar
mass. Mr. Adkins’s wife, Lillian Adkins, filed a claim for dependent’s benefits. On September
3, 2008, the claims administrator denied dependent’s benefits because occupational
pneumoconiosis was not a contributing factor in Mr. Adkins’s death.

       On July 3, 2008, the Occupational Pneumoconiosis Board reviewed the claim and
concluded that Mr. Adkins’s occupational pneumoconiosis was not a material factor in his death.
Mrs. Adkins disagrees and argues that the evidence shows that occupational pneumoconiosis
contributed to the death of Mr. Adkins. Dr. Rasmussen and Dr. Gaziano were of the opinion that
Mr. Adkins’s death was a result of a combination of his occupational pneumoconiosis, due to
coal dust, and a lifetime of smoking.

        Dr. Fino reviewed the claimant’s medical records and stated with a reasonable degree of
medical certainty that the coal mine dust and inhalation did not contribute to Mr. Adkins’s death;
that he would have died when and how he did if he had never worked in the coal mines. Dr.
Kinder, the chairperson of the Occupational Pneumoconiosis Board, was of the opinion that the
mass which caused Mr. Adkins’s death was more likely the result of his history of being a
smoker. Dr. Kinder believed that the occupational pneumoconiosis would not have caused the
cancer.

       The Office of Judges found that a preponderance of the evidence supports a finding that
occupational pneumoconiosis did not play a material contributing role in Mr. Adkins’s death.
The Office of Judges noted that Mr. Adkins had a significant smoking history and residual
diseases clearly attributable to his smoking, including COPD. The Board of Review reached the
same conclusion. We agree and find the Office of Judges was not clearly wrong in ruling that
occupational pneumoconiosis did not contribute to the Mr. Adkins’s death in a material way.

        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: May 16, 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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