STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

May 24, 2016 

RORY L. PERRY II, CLERK 

BILLIE S. TURNER, WIDOW OF SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

ALLEN TURNER, DECEASED 

Claimant Below, Petitioner 

vs.) No. 15-0427 (BOR Appeal No. 2050162) 

(Claim No. 2013015662) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER, 

Commissioner Below, Respondent 

and 

NATIONAL COAL MINING COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Billie S. Turner, widow of Allen Turner, pro se, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. West Virginia Office of the Insurance 

Commissioner, by Dawn E. George, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated April 15, 2015, in 

which the Board affirmed a December 12, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 18, 2013, 

decision which denied 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. Turner was sixty-four years old and a coal miner for twenty-seven years. He did have 

exposure to a dust hazard. Mr. Turner passed away on March 21, 2012. His widow, Mrs. Turner, 

applied for dependent’s benefits alleging that her husband suffered from occupational 

pneumoconiosis, which materially contributed to his death. The claims administrator denied Mrs. 

Turner’s request on October 18, 2013. 

Mr. Turner was admitted to treatment facilities numerous times prior to his death. A 

March 5, 2007, discharge summary from Appalachian Regional Healthcare indicated Mr. Turner 

was admitted due to respiratory distress. He complained of wheezing and a cough and was 

dyspneic upon examination. His lung examination revealed bibasilar crackles with scattered 

rhonchi and blood gas results showed severe hypoxemia. Mr. Turner’s blood glucose was 266. 

The final diagnoses were acute exacerbation of chronic obstructive pulmonary disease, 

hypertension, and uncontrolled diabetes mellitus. Mr. Turner was discharged home with 

medications and oxygen. On March 6, 2007, a discharge summary from Appalachian Regional 

Healthcare listed the admitting diagnosis as a history of vomiting blood at home with no past 

history of similar problems. Mr. Turner underwent an esophagogastroduodenoscopy with topical 

anesthesia. The final diagnosis was significant esophageal varices as well as gastric varices that 

appeared to be bleeding. There was no evidence of bleeding from the stomach, duodenum, or 

pylorus. As a result, Mr. Turner was transferred to St. Francis Hospital where he underwent an 

esophagogastroduodenoscopy with banding. The results showed Grade-4 varices and cirrhotic 

gastropathy. Six bands were applied. The final diagnoses were cirrhosis of the liver, 

gastrointestinal bleed, portal hypertension with esophageal varices, cerebrovascular accident, and 

diabetes mellitus. Mr. Turner was discharged in stable condition. 

On March 23, 2007, Mr. Turner underwent another esophagogastroduodenoscopy. The 

post-operative diagnosis was resolution of active bleeding from the esophageal varices. Most of 

the esophageal varices had subsided except one on the right lateral wall of the esophagus. No 

significant gastric varices and no other pathology were seen in the stomach. An August 15, 2007, 

discharge summary from Appalachian Regional Healthcare stated that Mr. Turner was admitted 

for severe breathlessness, wheezing, cough with thick mucoid expectoration, nausea, and 

vomiting. He was dyspneic upon examination and his lungs revealed bibasilar crackles with 

scattered rhonchi. The final diagnoses were acute gastroenteritis, acute exacerbation of chronic 

obstructive pulmonary disease, history of hypertension, diabetes mellitus, cirrhosis of the liver, 

portal hypertension, and ascites. 

On September 13, 2007, a history and physical examination report from Saint Francis 

Hospital stated that Mr. Turner was seen for complaints of hematemesis. It was noted that he was 

getting ready to eat breakfast when he suddenly felt sick to his stomach and vomited about two 

tablespoons of bright red blood mixed with blood clots. He felt dizzy but did not pass out. He 

was seen in the emergency room and referred for further evaluation. The assessment was 

hematemesis; renal insufficiency likely secondary to prerenal azotemia and diuretic use; massive 

ascites; cirrhosis of the liver likely secondary to alcoholic liver disease; chronic microcytic 

anemia secondary to a gastrointestinal bleed; uncontrolled type II diabetes mellitus, insulin 

dependent; hypertension; and chronic obstructive lung disease. He underwent a paracentesis. 

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A September 17, 2007, CT of the abdomen from Saint Francis Hospital revealed bibasilar 

atelectasis and abnormal liver with changes compatible with chronic liver disease. There were 

also mild diffuse retroperitoneal inflammatory changes of uncertain clinical significance, 

diverticulosis without diverticulitis, a right renal cyst, and splenomgaly. The following day, Mr. 

Turner underwent an esophagogastroduodenoscopy with banding of multiple varices in the distal 

esophagus and proximal stomach as well as attempted paracentesis. The procedure was aborted 

because of insufficient acetic fluid. The final diagnoses were acute variceal bleed, anemia, 

cirrhosis of the liver, suspected hepatocellular carcinoma, and uncontrolled type 2 diabetes 

mellitus. Mr. Turner was discharged home in stable condition. On October 19, 2007, he 

underwent another esophagogastroduodenoscopy with banding. 

A January 23, 2009, operative report from Saint Francis Hospital showed that the 

decedent again underwent esopbagogastroduodenoscopy with biopsy and banding. From January 

23, 2009, through October 24, 2011, records from Saint Francis Hospital and SVI Laboratories 

showed that Mr. Turner had microcytic iron deficiency anemia, likely from a slow upper 

gastrointestinal bleed from esophageal varices; massive ascites with cirrhosis; chronic 

obstructive pulmonary disease with mild exacerbation and chronic hypoxia; and poorly 

controlled diabetes. 

Emergency room records from Thomas Memorial Hospital from July 1, 2010, through 

January 17, 2012, show that Mr. Turner was seen on July 1, 2010, with complaints of rectal 

bleeding of moderate degree. It was noted that he had similar symptoms once previously. The 

impression was lower gastrointestinal bleed, uncontrolled type II diabetes, and severe 

hyperglycemia. He was admitted for treatment. On September 25, 2010, Mr. Turner presented 

with complaints of dyspnea and cirrhosis, which he noted began several days prior and were 

getting worse. He stated it was moderate, worsened by walking, and improved with rest. He also 

stated that he had noticed increased abdominal girth, tension, and lower leg edema, which was a 

chronic condition. He was admitted to the hospital for treatment. The impression was dyspnea, 

chronic cirrhosis, ascites of unknown etiology, and anemia. On January 16, 2012, he presented 

with moderately low hemoglobin and complained of fatigue and weakness. The impression was 

abnormal serum liver function test, anemia, and cirrhosis. He was instructed to follow-up in the 

emergency room as needed. Mr. Turner underwent paracentesis eighteen times between June 28, 

2011, and March 12, 2012. He had two additional esophagogastroduodenoscopies with banding 

on August 15, 2011, and October 11, 2011. Mr. Turner passed away on March 21, 2012. The 

death summary from Williamson Memorial lists the cause of death as cardiopulmonary arrest. 

On September 17, 2014, members of the Occupational Pneumoconiosis Board were 

called to testify before the Office of Judges. Jack Kinder, M.D., testified on behalf of the Board 

that Mr. Turner suffered from nonalcoholic steatohepatitis, which is a form of liver disease most 

commonly due to diabetes or a high carbohydrate diet. He had esophageal varices and was 

diagnosed with cirrhosis of the liver. Dr. Kinder stated that Mr. Turner was found unresponsive 

at his home in cardiac arrest. He received a code blue and subsequently passed away during that 

event. Dr. Kinder found that Mr. Turner’s medical records did not show that a diagnosis of 

occupational pneumoconiosis was ever made either by x-ray or pathology. Dr. Kinder found that 

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he died as a result of liver disease and that occupational pneumoconiosis played no role in his 

death. Bradley Henry, M.D., concurred with Dr. Kinder’s analysis. 

The Office of Judges agreed with the opinion of the Occupational Pneumoconiosis Board 

that occupational pneumoconiosis did not materially contribute to Mr. Turner’s death. As a 

result, the Office of Judges entered an Order on December 12, 2014, affirming the claims 

administrator’s decision to deny dependent’s benefits. The Office of Judges examined the 

standard in Fenton Art Glass Co. v. West Virginia Office of the Insurance Commissioner, 222 

W.Va. 420, 664 S.E.2d 761 (2008), which held that in the absence of any evidence showing the 

Occupational Pneumoconiosis Board’s findings to be clearly wrong, the Occupational 

Pneumoconiosis Board’s findings must be affirmed. The Office of Judges determined that there 

was not enough evidence to show that the Occupational Pneumoconiosis Board’s opinion was 

clearly wrong. 

After review, we agree with the consistent decisions of the Office of Judges and Board of 

Review. Pursuant to Bradford v. Workers’ Compensation Commissioner, 185 W.Va. 434, 408 

S.E.2d 13 (1991), 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. The Occupational Pneumoconiosis Board 

determined that Mr. Turner did not suffer from occupational pneumoconiosis. Because there was 

not sufficient evidence submitted to refute the opinion of the Occupational Pneumoconiosis 

Board, it was not in error for the Office of Judges and Board of Review to adopt its findings. 

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. 

ISSUED: May 24, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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