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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

SHERYL LANHAM, widow of

DAVID LANHAM (deceased),

Claimant Below, Petitioner

vs.) No. 18-0823 (BOR Appeal No. 2052674)

(Claim No. 2014006639)

 

UNITED COAL COMPANY, LLC, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Sheryl Lanham, widow of David Lanham, by Counsel James R. Fox, appeals the 

decision of the West Virginia Workers’ Compensation Board of Review. United Coal Company, 

LLC, by Counsel H. Toney Stroud, filed a timely response.

There are two issues in this claim: 1) whether the claim is entitled to the statutory 

presumption set forth in West Virginia Code § 23-4-8c(b) (2018); and 2) whether occupational 

pneumoconiosis was a material contributing factor in the decedent’s death. By Order dated January 

12, 2016, the claims administrator denied Mrs. Lanham’s application for fatal dependent benefits. 

The Workers’ Compensation Office of Judges (“Office of Judges”) affirmed the claims 

administrator’s Order on January 29, 2018. Mrs. Lanham also appeals an interlocutory Order dated 

December 10, 2014, from the Office of Judges, which held that the claim is not subject to the 

presumption set forth in West Virginia Code § 23-4-8c(b). This appeal arises from the Board of 

Review’s Final Order dated August 21, 2018, in which the Board affirmed the Office of Judges’ 

decisions dated December 10, 2014, and January 29, 2018. 

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 decedent, David Lanham, passed away on August 29, 2011. Thereafter, his widow, 

Sheryl Lanham, completed an application for fatal dependent’s benefits on February 25, 2013, and 

FILED

September 3, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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argued that occupational pneumoconiosis was a contributing factor in her husband’s death. The 

application stated that Mr. Lanham worked in underground coal mining from the late 1970’s until 

2011. He last worked for United Coal Company as a roof bolter operator from August 16, 2010, 

until February 2, 2011. Attached to the application was a copy of the decedent’s death certificate 

and marriage certificate, along with income tax returns and W-2 statements. A copy of the autopsy 

report completed by Fulvio R. Franyutti, M.D., on September 1, 2011, was also attached to the 

application. In the autopsy report, Dr. Franyutti diagnosed Mr. Lanham with mild pneumoconiosis 

and noted that he appeared to have significant inhalation or exposure to silicates or components 

from coal. 

A claim decision was issued by the claims administrator on July 29, 2013, denying the 

application for benefits because it could not be determined from the information received if the 

exposure requirements were met in accordance with West Virginia law. The decision was based 

on the application for benefits along with the attachments, the Employer’s Report of Occupational 

Pneumoconiosis, and income tax returns from 2006 to 2010. Mrs. Lanham protested the claims 

administrator’s decision.

By Decision dated December 10, 2014, the Office of Judges reversed the claim 

administrator’s Order and held the claim compensable on a nonmedical basis not subject to the 

presumption of West Virginia Code § 23-4-8c(b) with a date of last exposure of August 3, 2011, 

and United Coal Company listed as the chargeable employer. The Office of Judges found that the 

evidence demonstrated that Mr. Lanham more likely than not had the requisite exposure of five of 

the fifteen years from February 2, 1996, to February 3, 2011, to allow a claim for dependent 

benefits. The Office of Judges also determined that the evidence established that Mr. Lanham had 

sixty days of continuous exposure with United Coal Company. However, it was reasoned that the 

evidence was not sufficient to entitle the decedent to the statutory presumption. The Office of 

Judges concluded that there was insufficient evidence to satisfy the requisite time of exposure for 

entitlement to the presumption. The claim was referred to the Occupational Pneumoconiosis Board 

(“OP Board”) to determine whether occupational pneumoconiosis was a material contributing 

factor to Mr. Lanham’s death.

The Occupational Pneumoconiosis Board issued a report dated November 17, 2015, which 

listed all of the medical evidence it reviewed in making its determination and opined that 

occupational pneumoconiosis was not a material contributing factor in Mr. Lanham’s death. Based 

upon the Board’s report, the claims administrator denied Mrs. Lanham’s claim for dependent 

benefits on the basis that the Board found that occupational pneumoconiosis was not a material 

contributing factor in Mr. Lanham’s death. Mrs. Lanham protested the claims administrator’s 

decision.

In support of her protest, Mrs. Lanham submitted an affidavit from Dr. Franyutti, along 

with his Report of Autopsy, dated September 1, 2011. In his report, Dr. Franyutti diagnosed 

bilateral diffuse extensive pleural fibrosis with focal anthraco-silicotic nodules; mild 

pneumoconiosis, pulmonary emphysema; bilateral parietopleural adhesions; bilateral pleural 

effusions; bronchopneumonia; and a history of cancer of the esophagus and stomach with 
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metastasis and chemotherapy. In his affidavit, Dr. Franyutti opined that Mr. Lanham had 

occupational pneumoconiosis that was a substantial, material factor in causing his death. 

United Coal Company, LLC, submitted an April 3, 2017, report of Everett Oesterling, 

M.D., who reviewed the autopsy report and slides, the affidavit of Dr. Franyutti, and additional 

materials. Dr. Oesterling found a very low level of disease process and limited structural change 

due to coal dust, and stated that without more structural change, dust would not have produced 

lifetime disability. Dr. Oesterling determined that Mr. Lanham’s pneumonia was due to his failing 

heart and metastatic tumor, not coal dust and pleura changes. Dr. Oesterling stated that Dr. 

Franyutti’s determination of progressive massive fibrosis was “totally inaccurate” because none 

of the slides had multiple nodules and there was no confluence of nodules demonstrated. Dr. 

Oesterling concluded that without more significant alterations in structure, coal dust did not 

contribute to, hasten or cause the decedent’s death. United Coal also submitted the April 3, 2017, 

report of Gregory Fino, M.D. Dr. Fino reviewed the medical record and found that Mr. Lanham 

had simple pneumoconiosis which did not cause, contribute to, or hasten his death. Dr. Fino stated 

that Mr. Lanham died as a result of metastatic esophageal cancer and would have died regardless 

of coal dust exposure.

An OP Board hearing was held on January 3, 2017. The OP Board reviewed the autopsy 

report of Dr. Franyutti and the death certificate. It was the OP Board’s opinion that occupational 

pneumoconiosis was not a material contributing factor to Mr. Lanham’s death. The OP Board also 

was of the opinion that there was no medical evidence that pneumoconiosis delayed the diagnosis 

of esophageal cancer, nor did it hamper treatment of Mr. Lanham’s cancer. 

By Order dated January 29, 2018, the Office of Judges affirmed the denial of dependent 

benefits. The Office of Judges found that the OP Board fully articulated the basis for its findings 

and its agreement with the reports of Dr. Oesterling and Dr. Fino in finding that occupational 

pneumoconiosis was not a material contributing factor in Mr. Lanham’s death. Mrs. Lanham 

appealed to the Board of Review.

On August 21, 2018, the Board of Review affirmed the Office of Judges’ decision and 

found that occupational pneumoconiosis was not a material contributing factor in Mr. Lanham’s 

death. The Board of Review noted that even if Mr. Lanham were entitled to the statutory 

presumption, the result in the claim would not change. The Board of Review found that it is 

undisputed that Mr. Lanham had occupational pneumoconiosis at the time of his death. However, 

the Board found that occupational pneumoconiosis was not a material contributing factor in Mr. 

Lanham’s death. 

After review, we agree with the decision of the Office of Judges, as affirmed by the Board 

of Review. The evidence of record does not establish that the decedent is entitled to the 

presumption. The medical evidence in this case supports the position that occupational 

pneumoconiosis was not a material contributing factor in Mr. Lanham’s 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 
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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: September 3, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

DISSENTING:

Justice John A. Hutchison