                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             October 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
SANDRA RIFFE, WIDOW OF                                                        OF WEST VIRGINIA

EDGAR RIFFE,
Claimant Below, Petitioner

vs.)   No. 13-0800 (BOR Appeal No. 2047830)
                   (Claim No. 880066810)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER,

Commissioner Below, Respondent


and


ROCKY I, INC.,

Employer Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Sandra Riffe, widow of Edgar Riffe, by Jerome J. McFadden, 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 July 5, 2013, in which
the Board affirmed an October 26, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s February 23, 2009, decision
which denied a 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

                                                1
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Riffe, a coal miner, passed away on May 14, 2007. His widow alleges that
occupational pneumoconiosis was a material, contributing factor in his death. On November 14,
2002, James Castle, M.D., performed a pulmonary evaluation of Mr. Riffe. Mr. Riffe reported
that he smoked for fourteen years and was a coal miner for twenty-one years. Dr. Castle
reviewed an October 28, 2002, x-ray and found that occupational pneumoconiosis was not
present at that time. He concluded that there was no evidence of occupational pneumoconiosis by
physical examination, radiographic evaluation, or physiological testing. He noted that Mr. Riffe
had tobacco smoke induced chronic bronchitis.

        A May 14, 2007, discharge summary from Welch Community Hospital by Majester
Abdul-Jalil, M.D., indicates Mr. Riffe died as a result of hypoxia secondary to congestive heart
failure exacerbated by chronic lung disease and possible hospital acquired pneumonia. He noted
frequent hospitalizations for chronic lung disease and congestive heart failure as well as
dementia, fluid overload, and occupational exposure with the potential for occupational
pneumoconiosis. Dr. Abdul-Jalil stated that Mr. Riffe had chronic lung disease secondary to
occupational exposure and a remote history of cigarette smoking. Mr. Riffe also had serial
exacerbations of congestive heart failure which compromised his respiratory status.

        An autopsy performed by Antonio Dy, M.D., revealed extensive bilateral
bronchopneumonia in the lower left lobe of the left lung and the remainder of the right lung. It
also showed simple occupational pneumoconiosis, visceral pleural fibrosis, dispersed dust
presence, and scarring. The death certificate lists the cause of death as asystole with hypoxia,
asphyxiation, and aspiration of gastric contents as secondary causes. Complete heart failure,
edema, pulmonary congestion, severe chronic lung disease, and pneumonia were listed as other
significant contributing factors. In an April 30, 2008, letter, Dr. Dy stated that the bronchial
branches of Mr. Riffe’s lungs were completely patent and there was no evidence of aspiration or
mucosal changes following aspiration. He opined in a May 8, 2009, letter that Mr. Riffe died as a
result of complications from his lung condition. He did not specify what the lung condition was.
Mr. Riffe’s treating physician, Mario Cardona, M.D., also opined that Mr. Riffe died as a result
of complications of respiratory distress. He asserted that Mr. Riffe had occupational
pneumoconiosis and that all of his breathing problems stemmed from the disease.

       Joseph Tomashefski, M.D., reviewed medical records, the autopsy report, and slides of
Mr. Riffe’s lungs. He stated in an April 16, 2009, letter that he found emphysema and increased
pigmented macrophages in the lung tissue. There was insignificant interstitial fibrosis. He noted
areas of acute bronchopneumonia and evidence of aspergillus. There was vegetable material
consistent with aspiration. He found one sub-millimeter sized black pigment deposit that is
possibly consistent with coal macules. Other than the one miniscule pigment deposit, he found
no definitive evidence of coal macules or nodular lesions. He opined that Mr. Riffe did not have
occupational pneumoconiosis and that even if the one small macule found is considered to be
simple occupational pneumoconiosis, it did not materially contribute to the death. He also opined

                                               2
that coal dust exposure was not a cause or contributory factor in Mr. Riffe’s emphysema, cardiac
arrest, or fungal pneumonia.

        The Occupational Pneumoconiosis Board testified in a hearing before the Office of
Judges on September 7, 2011. Jack Kinder, M.D, opined on behalf of the Board that occupational
pneumoconiosis was not a material, contributing factor in Mr. Riffe’s death. He noted that Mr.
Riffe worked in the coal mines for twenty-one years and smoked between one and two packs of
cigarettes a day for thirty-four years. He also noted that Dr. Tomashefski reviewed the autopsy
report and determined that Mr. Riffe likely had acute fungal pneumonia with mild to moderate
emphysema and no evidence of occupational pneumoconiosis. Mr. Riffe suffered a gunshot
wound to the chest in 1977 which decreased his right lung function by 60%. Dr. Kinder stated
that prior to his death, Mr. Riffe had noncompliance with medical regime issues and a history of
alcohol abuse. He testified that Mr. Riffe had multiple medical problems and that his death was
not related to occupational pneumoconiosis. He opined that Dr. Dy’s description of the
pathology reports in the autopsy is lacking in detail and inconsistent with occupational
pneumoconiosis. Dr. Kinder opined that Mr. Riffe died as the result of aspiration. The pulmonary
condition did contribute to his overall decline in health in the two years prior to his death but he
did not have occupational pneumoconiosis. Bradley Henry, M.D., also of the Occupational
Pneumoconiosis Board, testified that though Dr. Dy diagnosed occupational pneumoconiosis in
the autopsy report, he did not find macules or nodules associated with fibrosis as is necessary for
a diagnosis of occupational pneumoconiosis. Dr. Dy’s description of the lung tissue describes
anthracosis, not occupational pneumoconiosis. Johnsey Leef, M.D., also of the Occupational
Pneumoconiosis Board, concurred that Mr. Riffe did not have occupational pneumoconiosis.

        The Occupational Pneumoconiosis Board testified in a second hearing before the Office
of Judges on March 7, 2012, in order to consider Mrs. Riffe’s August 5, 2010, award of federal
black lung benefits. Dr. Kinder stated that West Virginia’s standards for occupational
pneumoconiosis benefits differ from the federal standards for black lung benefits. His opinion of
the case was not changed by the findings and conclusions in Mrs. Riffe’s federal black lung
benefits case. He stated that Mr. Riffe’s medical problems were very severe and that even if he
did have simple occupational pneumoconiosis, it would not have materially contributed to his
death. Mr. Riffe aspirated and that was not caused by pulmonary impairment. Dr. Henry
concurred with Dr. Kinder and reiterated that he did not find even simple occupational
pneumoconiosis in this case.

        The claims administrator denied Mrs. Riffe’s request for dependent’s benefits on
February 23, 2009. The decision was affirmed by the Office of Judges on October 26, 2012. The
Office of Judges gave significant weight to the Occupational Pneumoconiosis Board’s testimony
as well as the report of Dr. Tomashefski. The Office of Judges found that Mr. Riffe had a
moderate pulmonary impairment and pulmonary problems since at least 1998. However, as the
Occupational Pneumoconiosis Board explained, a significant amount of the pulmonary problems
are attributable to other physical conditions including emphysema caused by cigarette smoking,
heart disease, evidence of strokes and hemorrhages, dementia, diabetes, alcohol abuse, and
nicotine abuse. Dr. Tomashefski found that Mr. Riffe did not have occupational pneumoconiosis
based upon lung tissue samples. Dr. Henry testified that Dr. Dy’s autopsy report described
                                                 3
anthracosis and not occupational pneumoconiosis. Drs. Kinder and Henry stated that the lung
problems derived from cardiac problems and cigarette smoking. The Office of Judges
determined that the Occupational Pneumoconiosis Board’s testimony and Dr. Tomashefski’s
report indicated that, at most, Mr. Riffe could have had simple occupational pneumoconiosis that
would not have a been a material, contributing factor in his death. The Office of Judges also
determined that the findings of Drs. Dy, Cardona, and Abdul-Jalil were not persuasive to
establish that occupational pneumoconiosis was a material, contributing factor in Mr. Riffe’s
death. The Office of Judges concluded that it was questionable whether Mr. Riffe even had
occupational pneumoconiosis.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 5, 2013, decision. On appeal, Mrs. Riffe argues that
there is no basis to dispute that Mr. Riffe had a severe pulmonary disease that significantly
contributed to his death. The West Virginia Office of the Insurance Commissioner asserts that
the evidentiary record clearly shows that occupational pneumoconiosis did not materially
contribute to Mr. Riffe’s death. After review, this Court agrees with the reasoning of the Office
of Judges and the 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: October 20, 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




                                                4
