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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Sue Ellen Delung, widow of

Russell Delung (deceased)

Claimant Below, Petitioner

v.) No. 22-0145 (BOR Appeal No. 2057240)

(JCN: 2016019765)

 

Speed Mining, LLC, 

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Sue Ellen Delung, widow of Russell Delung (deceased) appeals the decision of 

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

Speed Mining, LLC, filed a timely response.1 The issue on appeal is whether Mr. Delung’s 

occupational pneumoconiosis was a material contributing factor in his death, thus entitling Mrs. 

Delung to dependent’s benefits. On January 24, 2018, the claim administrator approved Mrs. 

Delung’s claim for dependent’s benefits on the basis that occupational pneumoconiosis was a 

material contributing factor in Mr. Delung’s death. The Workers’ Compensation Office of Judges 

(“Office of Judges”) reversed the claim administrator’s order on August 10, 2021, and denied the 

claim for dependent’s benefits. The decision of the Office of Judges was affirmed by the Board of 

Review on January 20, 2022. Upon our review, we determine that oral argument is unnecessary 

and that a memorandum decision affirming the Board of Review’s decision is appropriate. See

W. Va. R. App. P. 21.

On January 27, 2016, Mrs. Delung filed an Application for Dependent’s Benefits form, 

along with a death certificate completed by E. J. Salon, M.D., stating that the immediate cause of 

Mr. Delung’s death was metastatic squamous cell carcinoma due to stage four esophageal 

carcinoma. The other significant conditions listed as contributing to Mr. Delung’s death were 

anemia, leukocytosis, and hypertension. 

The Occupational Pneumoconiosis Board (“OP Board”) evaluated the claim and issued its 

findings in a report dated October 19, 2017. The OP Board considered the medical evidence in the 

claim, as well as the death certificate and autopsy reports before concluding that occupational 

pneumoconiosis was a material contributing factor in Mr. Delung’s death. The OP Board reviewed 

1 The petitioner is represented by John H. Shumate, Jr., and the respondent is represented 

by T. Jonathan Cook. 

FILED

March 20, 2024

C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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the x-ray evidence and CT scans in the record, and found that the testing showed nodular fibrosis 

in all lung zones with a coalescence of nodules in the mid and upper lung zones. A pulmonary 

overexpansion was also observed, which was consistent with chronic obstructive pulmonary 

disease. On January 24, 2018, the claim administrator entered an order granting the claim for 

dependent’s benefits based on the OP Board’s finding that occupational pneumoconiosis was a 

material factor in Mr. Delung’s death. The employer protested the claim administrator’s decision.

On June 27, 2018, members of the OP Board testified at an initial hearing and, this time,

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

Delung’s death. Jack L. Kinder, M.D., the chair of the OP Board, testified that “this is somewhat 

of a complex case” because of Mr. Delung’s pretty extensive medical history prior to his death. 

Dr. Kinder testified:

This gentleman developed an upper head and neck cancer. Actually, it was palatine 

tonsils cancer. It was a squamous cell cancer. He had a history of smoking. It’s 

most likely what caused his cancer. It could also be other viral infections and such 

forth. But let’s just say for now he had cancer that was most likely caused by 

smoking. 

Dr. Kinder stated that the difficulty in this case comes from the fact that “somewhere in the 

literature, it was changed from a head and neck cancer of palatine tonsil to esophageal cancer. Dr. 

Kinder did not know the basis for Mr. Delung’s condition diagnosed as esophageal cancer. 

Dr. Kinder further testified that Mr. Delung was treated for head and neck cancer in 2014, 

and he initially responded well to the treatment. However, a new metastatic lesion was observed 

in his vocal cord a year before his death. Dr. Kinder testified that Mr. Delung was treated with 

chemotherapy, but he passed away due to complications from his metastatic cancer. Dr. Kinder set 

forth the basis of his prior finding of a material contributing factor as follows:

But to me, I’m looking at it, and I’m wondering if the physician who was treating 

him had that information and thought this was diagnosed now as esophageal cancer 

that is widely metastatic to the lung, as well as to the new lesion in the vocal cord, 

and he was treating him with aggressive chemotherapy based on those findings. If 

that were the case, and it was that he was misinterpreting that this was metastatic 

disease in the chest, then in my view, that may have played a role . . . a material 

contributing factor . . . even though it didn’t cause his death. It may have caused a 

misinterpretation of data, and therefore, maybe an overly aggressive treatment that 

caused his demise.

Dr. Kinder concluded that Mr. Delung died “as a result of cancer to the head and neck that was 

metastatic, and the treatment related to that.” Dr. Kinder acknowledged that Mr. Delung had “fairly 

good pulmonary functions before his cancer treatment, before his cancer was diagnosed.” 

However, based upon the newest findings, Dr. Kinder changed his opinion and concluded that 

occupational pneumoconiosis did not contribute in any material degree in Mr. Delung’s death.
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On August 28, 2019, Chauanfang Jin, M.D., reviewed Mr. Delung’s records, at the request 

of the employer, and provided a report stating that because Mr. Delung experienced significant 

and rapid weight loss, severe anemia, frequent infections due to chemotherapy, and electrolytes 

disturbance shortly before his death, the medical record strongly indicates that Mr. Delung’s death 

was due to metastatic squamous cell carcinoma. Dr. Jin concluded that coal workers’

pneumoconiosis was not a material contributing factor in his death.

At the final hearing held on April 21, 2021, members of the OP Board testified that Mr. 

Delung’s chest x-rays showed parenchymal and nodular parenchymal opacities consistent with 

occupational pneumoconiosis. However, John A. Willis, M.D., testified that malignancy was 

found in Mr. Delung’s autopsy, with a focus on adenocarcinoma. Dr. Willis explained that a softtissue nodule of pneumoconiosis would mimic metastatic disease, and it was possible that some of

the nodules were metastatic. Dr. Kinder testified that the death certificate lists metastatic squamous 

cell cancer and stage four esophageal cancer. Dr. Kinder also noted that Mr. Delung was found to 

have squamous cell cancer of the tonsil with metastasis to the lymph nodes in 2014. According to 

Dr. Kinder, Mr. Delung developed problems from the recurrence of his squamous cell cancer, and 

ultimately passed away due to complications of treatment of the cancer. With respect to Mr. 

Delung’s autopsy, Dr. Kinder testified:

The autopsy listed that, in the final summary or comments, that he had evidence of 

centrilobular emphysema. He had residual adenocarcinoma, I’m not sure where that 

came from, present in the left lung. The immediate cause of death was acute 

bronchopneumonia, which the underlying cause was a progressive massive 

pulmonary fibrosis, a complication of coal workers pneumoconiosis . . . .

Although the autopsy mentioned an incidental focus of adenocarcinoma in the perivascular space 

of the left lung, Dr. Kinder stated it was a very small cancer, and he opined that it was not 

contributory to Mr. Delung’s death. Dr. Kinder further testified that occupational pneumoconiosis 

did not cause Mr. Delung’s head and neck area cancer, nor did it hasten his death. It was Dr. 

Kinder’s opinion that Mr. Delung would have died, as he did, from complications of treatment of 

metastatic squamous cancer of the head and neck whether or not he had pneumoconiosis. 

In a final decision dated August 10, 2021, the Office of Judges reversed the January 24, 

2018, claim administrator order approving the claim for dependent’s benefits. Based upon the OP 

Board’s testimony, the Office of Judges found that the employer had shown that occupational 

pneumoconiosis was not a material contributing factor in Mr. Delung’s death. The Office of Judges 

determined that the OP Board’s initial recommendation that occupational pneumoconiosis was a 

material contributing factor was incorrect and clearly wrong. In an order dated January 20, 2022, 

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

and affirmed the decision.

This Court may not reweigh the evidentiary record, but must give deference to the findings, 

reasoning, and conclusions of the Board of Review, and when the Board’s decision effectively 

represents a reversal of a prior ruling of either the Workers’ Compensation Commission or the 

Office of Judges, we may reverse or modify that decision only if it is in clear violation of 
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constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so 

clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor 

of the Board’s findings, reasoning, and conclusions, there is insufficient support to sustain the 

decision. See W. Va. Code § 23-5-15(c) & (e). We apply a de novo standard of review to questions 

of law. See Justice v. W. Va. Off. of Ins. Comm’n, 230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012).

In this case, as a dependent, Mrs. Delung filed an application seeking dependent’s benefits 

under West Virginia Code § 23-4-10(b), which provides for dependent’s benefits if an employee’s 

death results from occupational pneumoconiosis. “To obtain benefits under West Virginia Code, 

23-4-10(b) (1978), a dependent is required to satisfy the following conditions: First, the deceased 

employee must have suffered a compensable personal injury or contracted occupational 

pneumoconiosis or another occupational disease. Second, this injury or disease must have caused 

the employee’s death. Third, if death was due to the injury, the disability must have been 

continuous from the date such injury occurred until the date of death.” Syl. Pt. 1, Vandergriff v. 

Workers’ Compensation Comm’r, 183 W. Va. 148, 394 S.E.2d 747 (1990). Mrs. Delung asserts 

on appeal that the appropriate test under West Virginia Code § 23-4-10(b) is not whether the 

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

injury or disease contributed in any material degree to the employee’s death. See Syl. Pt. 3, 

Bradford v. Workers’ Comp. Comm’r, 185 W. Va. 434, 408 S.E.2d 13 (1991). 

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

of Review. The OP Board initially recommended, in its October 19, 2017, report, that occupational 

pneumoconiosis was a material contributing factor in Mr. Delung’s death. However, on June 27, 

2018, the members of the OP Board explained that its initial determination that occupational 

pneumoconiosis was a material contributing factor in Mr. Delung’s death was incorrect. Dr. Kinder 

stated that Mr. Delung’s problems were from the recurrence of his squamous cell cancer. As a 

result, the OP Board determined that Mr. Delung underwent aggressive chemotherapy, leading to 

complications, which was the cause of his death. The OP Board’s opinion was corroborated by the 

report from Dr. Jin, who reviewed Mr. Delung’s records and concluded that coal workers’

pneumoconiosis was not a material contributing factor in the decedent’s death. Based upon the 

evidence in the record, the Board of Review did not err in affirming the decision of the Office of 

Judges, which was based upon the OP Board’s finding that occupational pneumoconiosis did not 

materially contribute to Mr. Delung’s death. 

 Affirmed. 

 

ISSUED: March 20, 2024

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Elizabeth D. Walker 

Justice John A. Hutchison

Justice William R. Wooton 

Justice C. Haley Bunn