1

 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

JUNE ASH, WIDOW OF ROY D. ASH,

Claimant Below, Petitioner

vs.) No. 20-0607 (BOR Appeal No. 2055290)

(Claim No. 2017002170)

 

GLASPELL LUMBER CO., INC., 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner June Ash, widow of Roy D. Ash, by Counsel J. Thomas Greene Jr., appeals the 

decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”). 

Glaspell Lumber Co., Inc., by Counsel H. Toney Stroud, filed a timely response.

The issue on appeal is dependent’s benefits. The claims administrator denied a request for 

dependent’s benefits on December 17, 2018. The Workers’ Compensation Office of Judges

(“Office of Judges”) affirmed the decision in its April 20, 2020, Order. The Order was affirmed 

by the Board of Review on July 8, 2020.

The Court has carefully reviewed the records, written arguments, and appendices contained 

in the briefs, and the case is mature for consideration. 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. 

The standard of review applicable to this Court’s consideration of workers’ compensation 

appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:

(b) In reviewing a decision of the board of review, the supreme court of 

appeals shall consider the record provided by the board and give deference to the 

board’s findings, reasoning and conclusions.

(c) If the decision of the board represents an affirmation of a prior ruling by 

both the commission and the office of judges that was entered on the same issue in 

FILED

January 11, 2022

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

the same claim, the decision of the board may be reversed or modified by the 

Supreme Court of Appeals only if the decision is in clear violation of Constitutional 

or statutory provision, is clearly the result of erroneous conclusions of law, or is 

based upon the board’s material misstatement or mischaracterization of particular 

components of the evidentiary record. The court may not conduct a de novo reweighing of the evidentiary record. 

See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64 

(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 

230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions 

of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of 

Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011). 

Mr. Ash was a plant worker for forty-four years, during which time he was exposed to 

hazardous dust. An April 15, 2015, CT scan of the lungs showed findings suggestive of pulmonary 

fibrosis. There were no acute infiltrates or pulmonary fibrosis nodules. 

The Occupational Pneumoconiosis Board (“OP Board”) testified in a March 21, 2018, 

hearing. Johnsey Leef, M.D., testified on behalf of the Board that he reviewed the chest x-rays and 

diagnosed occupational pneumoconiosis. Jack Kinder, M.D., agreed with the diagnosis and opined 

that the East Ohio Regional pulmonary studies showed total impairment. Dr. Kinder stated that he 

was not sure why the OP Board previously found that Mr. Ash had 30% impairment attributable 

to occupational exposure and the remaining impairment was due to nonoccupational causes. Dr. 

Kinder testified that the OP Board reviewed Dr. Lenkey’s report, in which he opined that Mr. Ash 

had 50% impairment due to asbestosis. Dr. Kinder stated that it was difficult to disagree with Dr. 

Lenkey’s finding. He noted that Mr. Ash smoked two packs of cigarettes a day for twenty to thirty 

years. Dr. Kinder believed that there was enough disease process visible on Mr. Ash’s chest x-rays 

to find 50% impairment attributable to occupational pneumoconiosis. However, Dr. Kinder stated 

that he felt uncomfortable making that recommendation in an initial evaluation without first 

reviewing a CT scan. Dr. Leef testified that he saw no evidence of pleural plaques or calcified 

plaques on x-rays. He stated that he was comfortable with 30% or 50% impairment, but he would 

like to review additional information before changing the OP Board’s finding to 50% impairment. 

A Death Certificate indicates Mr. Ash died on July 27, 2018. The primary cause of death 

was listed as nonalcoholic hepatic cirrhosis. An autopsy was not performed. The OP Board 

reviewed Mr. Ash’s claim as a fatal claim on October 4, 2018. It found that Mr. Ash was seventyone years old at the time of his death. He worked as a plant worker and had a history of significant 

dust exposure. The Board concluded, however, that occupational pneumoconiosis was not a 

material contributing factor in Mr. Ash’s death. The OP Board noted that it reviewed chest x-rays 

and found nodular fibrosis throughout both lungs consistent with occupational pneumoconiosis. 

Based on the OP Board’s findings, the claims administrator denied Mrs. Ash’s request for 

dependent’s benefits on December 17, 2018.

The OP Board testified in a January 9, 2019, hearing in Mr. Ash’s living impairment claim. 

Jack Willis, M.D., stated that he reviewed an April 15, 2015, CT scan of Mr. Ash’s chest. The 
3

findings were consistent with asbestosis and simple occupational pneumoconiosis. Dr. Kinder 

agreed with Dr. Willis’s opinion and further opined that there was enough evidence to find 50% 

impairment due to Mr. Ash’s occupational dust exposure. 

The Office of Judges affirmed the claims administrator’s denial of the request for 

dependent’s benefits in its April 20, 2020, Order. It found that the OP Board was not clearly wrong 

to find that the occupational pneumoconiosis did not materially contribute to Mr. Ash’s death. The 

death certificate indicates he died as a result of nonalcoholic hepatic cirrhosis. The Board of 

Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed 

its Order on July 8, 2020.

After review, we agree with the reasoning and conclusions of the Office of Judges as 

affirmed by the Board of Review. The standard for granting dependent’s benefits is not whether 

the employee’s death was the result of the occupational disease exclusively, but whether the 

occupational disease contributed in any material degree to the death. Bradford v. Workers’ Comp.

Comm’r, 185 W. Va. 434, 408 S.E.2d 13 (1991). West Virginia Code § 23-4-6a provides that the 

Office of Judges “shall affirm the decision of the Occupational Pneumoconiosis Board made 

following [the] hearing unless the decision is clearly wrong in view of the reliable, probative and 

substantial evidence on the whole record.” Mr. Ash’s death certificate indicates he died as a result 

of nonalcoholic hepatic cirrhosis. While Mr. Ash did suffer from impairment due to occupational 

pneumoconiosis, there is no indication in the record that the condition materially contributed to 

his death. 

 Affirmed.

ISSUED: January 11, 2022

CONCURRED IN BY:

Chief Justice John A. Hutchison

Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice William R. Wooton

DISQUALIFIED:

Justice Evan H. Jenkins