STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

November 29, 2016 PEARL VINCENT, RORY L. PERRY II, CLERK 

WIDOW OF FONZO VINCENT, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Claimant Below, Petitioner 

vs.) No. 16-0083 (BOR Appeal No. 2050670) 

(Claim No. 870040009) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER, 

Commissioner Below, Respondent 

and 

UPSHUR COALS CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Pearl Vincent, widow of Fonzo Vincent, by Robert L. Stultz, her attorney, 

appeals the decision of the West Virginia Workers’ Compensation Board of Review. The West 

Virginia Office of the Insurance Commissioner, by Brandolyn Felton-Ernest and Dawn E. 

George, its attorneys, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 8, 2016, in 

which the Board affirmed a July 14, 2015, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 5, 2014, 

decision denying a 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 

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Mr. Vincent, a coal miner for forty years, passed away on May 26, 2013. The death 

certificate lists the cause of death as chronic obstructive pulmonary disease. On July 19, 2013, 

his widow filed an application for dependent’s benefits alleging that Mr. Vincent died as a result 

of an occupational injury. It was noted that he began work as a coal miner as a teenager and 

worked for various coal companies over the years. On April 12, 1988, Mr. Vincent was granted a 

25% permanent partial disability award for occupational pneumoconiosis. 

A treatment note by John Bellotte, M.D., on May 20, 1998, noted that Mr. Vincent quit 

smoking eleven years prior. Before that, he smoked three fourths of a pack a day for forty years. 

Mr. Vincent was diagnosed with simple occupational pneumoconiosis and chronic obstructive 

pulmonary disease with chronic bronchitis and an element of bronchospasm. A pulmonary 

function test showed moderately severe small airway dysfunction. Mr. Vincent was hospitalized 

in September of 2003 for respiratory problems. A discharge summary from United Hospital 

Center indicates he had been in the hospital four times in three months for pneumonia. His 

diagnoses on discharge included eosinophilic pneumonia, chronic obstructive pulmonary disease, 

and hypoxic respiratory failure. 

A chest x-ray taken in April of 2007 revealed overall stable appearance with scarring in 

both upper lobes, unchanged. There were also diffuse marked emphysematous changes. In 

January of 2013, Mr. Vincent was again hospitalized. A consultation note from United Hospital 

Center indicates Mr. Vincent was hospitalized for hypoxia, coughing up blood, and shortness of 

breath. It was noted that he had chronic eosinophilic pneumonia and was recently treated for an 

exacerbation. He also had underlying, severe chronic obstructive pulmonary disease. Mr. 

Vincent’s prognosis was poor and he passed away four months later. 

On March 27, 2014, the Occupational Pneumoconiosis Board concluded that 

occupational pneumoconiosis was not a material, contributing factor in the decedent’s death. On 

May 5, 2014, the claims administrator denied Mrs. Vincent’s request for benefits. In a January 

14, 2015, letter, Frank Scattaregia, M.D., stated that he treated Mr. Vincent from January of 1995 

until his death in May of 2013. He stated that Mr. Vincent had occupational pneumoconiosis and 

chronic obstructive pulmonary disease. Dr. Scattaregia asserted that Mr. Vincent died as a result 

of pulmonary problems, and though the death certificate lists the cause of death as chronic 

obstructive pulmonary disease, it was Dr. Scattaregia’s opinion that he died as the result of a 

combination of occupational pneumoconiosis and chronic obstructive pulmonary disease. He 

stated the two diagnoses were interchangeable and therefore occupational pneumoconiosis was a 

material factor in the death. 

The Occupational Pneumoconiosis Board testified in a hearing before the Office of 

Judges on May 6, 2015. John Willis, M.D., testified on behalf of the Board that Mr. Vincent had 

pleural plaques consistent with asbestos-related pleural disease. He also had severe emphysema. 

Dr. Willis declined to make a diagnosis of coal workers’ occupational pneumoconiosis or 

asbestosis. He acknowledged that Mr. Vincent did have asbestos-related pleural disease. Jack 

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Kinder, M.D., also testified on behalf of the Board. He opined that there was evidence of 

asbestos exposure, but agreed with Dr. Willis that there was no evidence of parenchymal lung 

disease. He opined that Mr. Vincent died from respiratory disease caused by smoking tobacco. 

John Henry, M.D., also of the Occupational Pneumoconiosis Board concurred. 

The Office of Judges affirmed the claims administrator’s rejection of the claim for 

dependent’s benefits on July 14, 2015. It found that the Occupational Pneumoconiosis Board’s 

radiologist, Dr. Willis, reviewed the radiographic evidence of record and opined in a hearing 

before the Office of Judges that Mr. Vincent had severe emphysema, asbestos-related pleural 

plaques, and scarring. Dr. Willis opined that he could not make a diagnosis of occupational 

pneumoconiosis or asbestosis. Though he found asbestos-related pleural disease, it was not the 

same as a diagnosis of asbestosis. Drs. Kinder and Henry agreed with Dr. Willis. Dr. Kinder 

testified that Mr. Vincent had a history of coal dust exposure as well as chronic obstructive 

pulmonary disease. He found no evidence of parenchymal lung disease. Since there was no 

evidence of occupational pneumoconiosis, the Occupational Pneumoconiosis Board found the 

overwhelming disease in this case was chronic obstructive pulmonary disease. This was 

supported by the CT scans. Though Mr. Vincent was granted a 25% permanent partial disability 

award for occupational pneumoconiosis, the Occupational Pneumoconiosis Board still concluded 

that he died a respiratory death due to smoking tobacco. Based on the Occupational 

Pneumoconiosis Board’s findings and the evidence of record, the Office of Judges concluded 

that a preponderance of the evidence does not support an award of dependent’s benefits in this 

case. Mr. Vincent had a very significant smoking history and there was minimal evidence of 

occupational pneumoconiosis on later radiological studies, though the studies did show a 

significant degree of emphysema. Mr. Vincent had multiple medical issues and was often 

hospitalized for various illnesses. Lastly, the Office of Judges noted that Dr. Scattaregia’s 

statement that chronic obstructive pulmonary disease and occupational pneumoconiosis are 

interchangeable diagnoses was incorrect. They are separate diagnoses and Mr. Vincent’s various 

physicians treated them as such. The Board of Review adopted the findings of fact and 

conclusions of law of the Office of Judges and affirmed its Order on January 8, 2016. 

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

Board of review. Mr. Vincent had a long history of working in coal mines with exposure to 

mining dust. However, he also has an extensive smoking history. The Occupational 

Pneumoconiosis Board found, using radiological studies, that Mr. Vincent did not suffer from 

occupational pneumoconiosis or asbestosis. Its opinion is supported by the evidentiary record. 

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. 

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ISSUED: November 29, 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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