STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 12, 2014 

RORY L. PERRY II, CLERK 

ALICE THOMAS, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

WIDOW OF JOHN THOMAS, 

Claimant Below, Petitioner 

vs.) No. 13-1060	 (BOR Appeal No. 2048347) 

(Claim No. 920039767) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

KEYSTONE SERVICE INDUSTRIES, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Alice Thomas, pro se, appeals the decision of the West Virginia Workers’ 

Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by 

Mary Rich Maloy, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 26, 2013, in 

which the Board affirmed an April 4, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 5, 2012, 

decision denying Ms. Thomas’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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Ms. Thomas filed a claim for dependent’s benefits following the June 5, 2011, death of 

her husband, John. Prior to his death, the decedent was diagnosed with metastatic lung cancer. 

He had also been diagnosed with end-stage renal disease, diabetes mellitus, hypertension, 

hyperlipidemia, chronic obstructive pulmonary disease, occupational pneumoconiosis, and 

congestive heart failure. The decedent’s death certificate lists the cause of death as metastatic 

lung cancer, and lists coal worker’s pneumoconiosis, end-stage renal disease, and diabetes 

mellitus as secondary conditions. On November 3, 2011, the Occupational Pneumoconiosis 

Board concluded that occupational pneumoconiosis did not materially contribute to the 

decedent’s death. The Occupational Pneumoconiosis Board noted that the decedent received a 

lifetime award of 20% for occupational pneumoconiosis, and determined that x-rays obtained on 

February 23, 1993, show a minimal degree of occupational pneumoconiosis with no progression 

from an October 8, 1984, study. On January 5, 2012, the claims administrator denied Ms. 

Thomas’s application for dependent’s benefits. 

At a hearing on February 20, 2013, the members of the Occupational Pneumoconiosis 

Board testified that occupational pneumoconiosis did not materially contribute to the decedent’s 

death. Jack Kinder, M.D., testified on behalf of the Occupational Pneumoconiosis Board that 

occupational pneumoconiosis did not cause the decedent’s lung cancer, did not delay his cancer 

diagnosis, and did not hamper his cancer treatment. Dr. Kinder further testified that the 

decedent’s cancer was metastatic and opined that the decedent would have died as a result of the 

metastatic cancer regardless of coal dust exposure. Finally, Dr. Kinder testified that the 

secondary conditions listed on the death certificate, namely occupational pneumoconiosis, endstage renal disease, and diabetes mellitus, did not materially contribute to the decedent’s death 

and were listed on the death certificate simply as diagnoses present at the time of death. In its 

Order affirming the January 5, 2012, claims administrator’s decision, the Office of Judges held 

that the preponderance of the evidence fails to establish that occupational pneumoconiosis 

materially contributed to the decedent’s death. 

In Bradford v. Workers’ Compensation Comm’r, Syl. Pt. 3, 185 W.Va. 434, 408 S.E.2d 

13 (1991), this Court held that in order to establish entitlement to dependent’s benefits, a 

claimant must show that an occupational disease or injury “contributed in any material degree to 

the death.” The Office of Judges found that the evidence of record establishes that the decedent 

died as a result of metastatic lung cancer. The Office of Judges further found that the 

Occupational Pneumoconiosis Board’s conclusion that occupational pneumoconiosis did not 

materially contribute to the decedent’s death is credible. The Office of Judges took note of the 

Occupational Pneumoconiosis Board’s finding that the decedent’s death certificate listed the 

cause of death as metastatic lung cancer, and further noted that Dr. Kinder opined that metastatic 

lung cancer, and not occupational pneumoconiosis, was solely responsible for the decedent’s 

death. The Board of Review reached the same reasoned conclusions in its decision of September 

26, 2013. 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 

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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: November 12, 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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