                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 20, 2013

                                                                            RORY L. PERRY II, CLERK

JACQUELINE SMITH, WIDOW OF                                                SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
DANIEL CARL SMITH,
Claimant Below, Petitioner

vs.)   No. 11-0840	 (BOR Appeal No. 2045164)
                   (Claim No. 980054591)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER

Commissioner Below, Respondent


and


DIVITA COAL COMPANY, INC.,

and MAPTONA INC.,

Employers Below, Respondent



                             MEMORANDUM DECISION
      Petitioner Jacqueline Smith, by Robert Williams, 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 April 26, 2011, in
which the Board affirmed a September 21, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 28, 2008,
decision denying Ms. Smith’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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Daniel Carl Smith worked as a coal miner for Maptona, Inc. and Divita Coal Company.
He passed away at home on April 11, 2007. An autopsy was performed, but was limited to the
lungs. On February 28, 2008, the claims administrator denied Ms. Smith’s application for
dependent’s benefits.

        The Office of Judges affirmed the claims administrator’s Order, and held that
occupational pneumoconiosis did not materially contribute to the decedent’s death. Ms. Smith
disputes that finding, and argues that several doctors found that occupational pneumoconiosis
materially contributed to her husband’s death, and it was found on the autopsy, therefore she
should be granted dependent’s benefits. Dr. Gaziano on April 22, 2009, concluded that
occupational pneumoconiosis was a significant contributory factor in Mr. Smith’s death; he
noted that the death certificate stated Mr. Smith died a respiratory death. Dr. Crouch found that
that the cause of death could not be definitively established based on the autopsy because the
post-mortem exam was restricted to the lungs; however, he noted that no lesions of coal worker’s
pneumoconiosis were observed. The Occupational Pneumoconiosis Board concluded that
occupational pneumoconiosis was not a material contributing factor in Mr. Smith’s death.

        In affirming the claims administrator’s Order, the Office of Judges found that the
testimony and conclusions of the Occupational Pneumoconiosis Board were persuasive in that
occupational pneumoconiosis was not a material contributing factor in Mr. Smith’s death. The
Office of Judges noted that the testimony of Dr. Kinder indicated that there was evidence of a
one to two pack per day smoking habit, that the information related to the decedent’s death was
unclear, and that the autopsy was limited. The Office of Judges concluded that occupational
pneumoconiosis did not materially contribute to the decedent’s death, and therefore Ms. Smith
was not entitled to dependent’s benefits. The Board of Review reached the same reasoned
conclusions in its decision of April 26, 2011. 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: February 20, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis



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Justice Margaret L. Workman

Justice Menis E. Ketchum

Justice Allen H. Loughry II





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