STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

November 20, 2013 

RORY L. PERRY II, CLERK 

EVELYN KINSER, WIDOW OF 

ORVIL KINSER, DECEASED SUPREME COURT OF APPEALS 

Claimant Below, Petitioner OF WEST VIRGINIA 

vs.) No. 12-0262 (BOR Appeal No. 2046191) 

(Claim No. 880066295) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

PENNY’S TRUCKING, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Evelyn Kinser, by Reginald D. Henry, 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 January 31, 2012, in 

which the Board affirmed a July 27, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 12, 2009, 

Order which denied Mrs. Kinser’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. 

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Mr. Kinser was employed as a coal truck driver by Penny’s Trucking, Inc. for nineteen 

years. Mr. Kinser died on January 12, 2009, and his death certificate list his immediate cause of 

death as end stage chronic obstructive pulmonary disease with secondary causes being coronary 

artery disease, sleep apnea, atrial fibrillation, and diabetes. The claims administrator denied Mrs. 

Kinser’s request for dependent’s benefits, stating that occupational pneumoconiosis was neither 

the cause of nor a material factor in Mr. Kinser’s death. 

The Office of Judges held that occupational pneumoconiosis was not a material 

contributing factor in the decedent’s death. Mrs. Kinser disagrees and asserts that the 

Occupational Pneumoconiosis Board was wrong about the amount of impairment attributable to 

occupational pneumoconiosis; therefore, their opinion should be rejected. The West Virginia 

Office of Insurance Commissioner argues that the record does not support that Mr. Kinser had a 

substantial pulmonary impairment due to occupational pneumoconiosis at the time of his death. 

On March 3, 2002, the Office of Judges ordered that Mr. Kinser receive an additional 55% 

permanent partial disability award due to occupational pneumoconiosis, for a total of 85% in 

permanent partial disability awards due to occupational pneumoconiosis. On April 7, 2010, Dr. 

Rasmussen opined that Mr. Kinser suffered from a progressively disabling and ultimately fatal 

chronic lung disease, which was primarily caused by his cigarette smoking and coal mine dust 

exposure. He stated that the coal dust exposure was a material contributing cause in Mr. Kinser’s 

death. 

On October 1, 2010, Dr. Fino opined that Mr. Kinser died as a result of sepsis, and that 

his underlying lung disease was not a material contributing factor in Mr. Kinser’s death. 

Members of the Occupational Pneumoconiosis Board testified that Mr. Kinser’s x-rays showed 

minimal to no evidence of occupational pneumoconiosis and that he died from sepsis. Dr. Kinder 

testified that Mr. Kinser would have died regardless of his coal dust exposure and opined that the 

coal dust exposure was not a material contributing factor. The Office of Judges noted that Dr. 

Fino observed that Mr. Kinser had a very fixed obstructive defect, which did not sound like a 

progressive smoking related disease or progressive coal workers’ pneumoconiosis. The Office of 

Judges held that occupational pneumoconiosis was not a material contributing factor in Mr. 

Kinser’s death. The Board of Review reached the same reasoned conclusions in its decision of 

January 31, 2012. 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. 

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ISSUED: November 20, 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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