                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BETTY KEFFER, WIDOW OF                                                        OF WEST VIRGINIA

JOHN C. KEFFER,
Claimant Below, Petitioner

vs.)   No. 12-0533	 (BOR Appeal No. 2046520)
                   (Claim No. 940042304)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CHARLESTON CONTSTRUCTION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Betty Keffer, by John Shumate Jr., her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Brandolyn Felton-Ernest, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated March 29, 2012, in
which the Board affirmed an October 17, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 10,
2009, decision denying Ms. Keffer’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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited

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circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

        Ms. Keffer filed a claim for dependent’s benefits following the December 7, 2008, death
of her husband, John. The decedent’s death certificate listed the cause of death as lung cancer
metastatic to the brain. Occupational pneumoconiosis and diabetes are listed as significant
conditions contributing to, but not resulting in the underlying cause of, the decedent’s death. On
September 3, 2009, the Occupational Pneumoconiosis Board noted that the decedent had
received a 50% lifetime permanent partial disability award for occupational pneumoconiosis.
The Occupational Pneumoconiosis Board then found that occupational pneumoconiosis did not
materially contribute to the decedent’s death, and further found that there is no radiographic
evidence of occupational pneumoconiosis in the record. On December 4, 2009, Daniel Doyle,
M.D., the decedent’s treating physician, stated that the decedent suffered from severe
occupational pneumoconiosis complicated by chronic bronchitis with repeated bouts of
pneumonia and acute asthmatic bronchitis. Dr. Doyle then stated that occupational
pneumoconiosis contributed to the decedent’s death, and that his breathing complications related
to occupational pneumoconiosis weakened him and made it more difficult for him to tolerate the
side effects of treatment for lung cancer.

        On November 8, 2010, Sanjay Mehta, D.O., stated that occupational pneumoconiosis
caused the decedent’s death and then went on to state that occupational pneumoconiosis was a
major contributing factor to the decedent’s death. On April 15, 2011, Gregory Fino, M.D.,
performed a records review and found that the decedent had a forty to seventy pack-year
smoking history. He further found that the decedent suffered from chronic obstructive pulmonary
disease consistent with smoking-induced chronic obstructive pulmonary disease. He found that
there is radiographic evidence of malignancy, but not of occupational pneumoconiosis. He
further found that even if it was assumed that occupational pneumoconiosis was present, it still
could not be considered a material contributing factor to the death of the decedent. He then stated
that the decedent developed lung cancer as a result of his significant smoking history. At a
hearing on August 3, 2011, the Occupational Pneumoconiosis Board found that the decedent
suffered from severe obstructive airway disease, but that there is no indication that it was caused
by occupational pneumoconiosis. The Occupational Pneumoconiosis Board then concluded that
the decedent died from metastatic lung cancer and that occupational pneumoconiosis was not a
material contributing factor to the decedent’s death. On November 10, 2009, the claims
administrator denied Ms. Keffer’s request for dependent’s benefits.

        In its Order affirming the November 10, 2009, claims administrator’s decision, the Office
of Judges held that the decedent’s death was caused by metastatic lung cancer, and further held
that occupational pneumoconiosis did not contribute in any material degree to the decedent’s
death. Ms. Keffer disputes this finding and asserts, per the opinion of Dr. Doyle, 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 Com’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
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must show that an occupational disease or injury “contributed in any material degree to the
death.” The Office of Judges found the conclusions of Dr. Fino and the Occupational
Pneumoconiosis Board to be reliable. Further, the Office of Judges found that the decedent died
as a result of metastatic lung cancer and that the evidence of record demonstrates that
occupational pneumoconiosis did not materially contribute to his death. The Board of Review
reached the same reasoned conclusions in its decision of March 29, 2012. We disagree. We find
that the opinions of Drs. Doyle and Mehta are persuasive. We further find that the evidence of
record demonstrates that occupational pneumoconiosis materially contributed to the decedent’s
death, and Ms. Keffer is therefore entitled to dependent’s benefits.

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and the claim is remanded with instructions to grant Ms.
Keffer dependent’s benefits.

                                                                        Reversed and remanded.

ISSUED: May 7, 2014

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

DISSENTING:
Justice Brent D. Benjamin




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