                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 20, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LOIS CAVENDER, WIDOW OF                                                       OF WEST VIRGINIA

CHARLES WINSTON CAVENDER,
Claimant Below, Petitioner

vs.)   No. 12-0978 (BOR Appeal No. 2046798)
                   (Claim No. 2008041537)

ALCAN ROLLED PRODUCTS – RAVENSWOOD, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Lois Cavender, widow of Charles Winston Cavender, by Robert M. Williams,
her attorney, appeals the decision of the West Virginia Workers’ Compensation Board of
Review. Alcan Rolled Products – Ravenswood, LLC, by H. Toney Stroud, its attorney, filed a
timely response.

        This appeal arises from the Board of Review’s Final Order dated July 27, 2012, in which
the Board affirmed a December 15, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 25, 2009, decision
denying Mrs. Cavender’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
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

      Mr. Cavender worked for Alcan Rolled Products. After a number of years, Dominic
Gaziano, M.D., found that Mr. Cavender had developed asbestosis with a mild degree of
pulmonary impairment. The Occupational Pneumoconiosis Board also found that Mr. Cavender
had occupational pneumoconiosis but no impairment. The claims administrator granted Mr.
Cavender a 5% permanent partial disability award for occupational pneumoconiosis. On October
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20, 2007, Mr. Cavender died. His death certificate listed the cause of death as hypoxia,
pulmonary embolism, and esophageal cancer. Mrs. Cavender then filed for dependent’s benefits
based on her husband’s death. But the Occupational Pneumoconiosis Board examined the
evidence in the record and found that occupational pneumoconiosis was not a materially
contributing factor in Mr. Cavender’s death. The Occupational Pneumoconiosis Board pointed to
an x-ray and CT scan that were taken before Mr. Cavender’s death which showed no evidence of
occupational pneumoconiosis. On March 25, 2009, the claims administrator denied Mrs.
Cavender’s request for dependent’s benefits. Dr. Gaziano then reviewed Mr. Cavender’s medical
records. He found that, even though Mr. Cavender had a significant history of cigarette smoking,
occupational pneumoconiosis materially contributed to his death. He found that Mr. Cavender’s
esophageal cancer was related to his occupational pneumoconiosis and that it diminished Mr.
Cavender’s chances of surviving cancer. Donald L. Rasmussen, M.D., also reviewed Mr.
Cavender’s medical records and found that occupational pneumoconiosis could have adversely
affected his pulmonary embolism. Joseph J. Renn, M.D., then reviewed Mr. Cavender’s records
and found that there was no relation between Mr. Cavender’s cancer and his occupational
exposure. John Craighead, M.D., also found that there was no connection between Mr.
Cavender’s death and his occupational exposure. He found that Mr. Cavender’s death was due to
complications of esophageal cancer. On December 15, 2011, the Office of Judges affirmed the
claims administrator’s decision. The Board of Review affirmed the Order of the Office of Judges
on July 27, 2012, leading Mrs. Cavender to appeal.

        The Office of Judges concluded that the evidence did not establish that occupational
pneumoconiosis was a material contributing factor in Mr. Cavender’s death. The Office of
Judges concluded that Mr. Cavender’s death was due to complications from esophageal cancer
and not occupational pneumoconiosis. In making this determination, the Office of Judges placed
significant weight on a CT scan taken a month before Mr. Cavender’s death, which showed no
evidence of occupational pneumoconiosis. The Office of Judges also relied on the findings of the
Occupational Pneumoconiosis Board and the opinions of Dr. Renn and Dr. Craighead. The
Office of Judges considered the opinion of Dr. Gaziano but found that he supplied no medical or
scientific evidence that Mr. Cavender’s esophageal cancer was derived from his occupational
exposure. The Office of Judges also found that Dr. Gaziano’s and Dr. Rasmussen’s opinions
were inconsistent with the CT scan which showed no evidence of occupational pneumoconiosis.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

       We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mrs. Cavender has not demonstrated that she is entitled to dependent’s benefits based on
her husband’s death. Mrs. Cavender had not demonstrated that occupational pneumoconiosis
contributed in any material degree to her husband’s death. Bradford v. Workers’ Comp. Comm’r,
185 W.Va. 434, 442, 408 S.E.2d 13, 21 (1991). Although Dr. Gaziano and Dr. Rasmussen both
found that occupational pneumoconiosis materially contributed to Mr. Cavender’s death, their
opinions are not supported by the medical evidence in the record. The CT scan taken before Mr.
Cavender’s death showed no evidence of occupational pneumoconiosis and was consistent with
esophageal cancer. Dr. Gaziano’s and Dr. Rasmussen’s opinions are also contradicted by the
findings of the Occupational Pneumoconiosis Board and the opinions of Dr. Renn and Dr.
Craighead. The evidence in the record shows that Mr. Cavender’s death was caused by
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esophageal cancer and that occupational pneumoconiosis did not materially contribute to his
death.

        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: March 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




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