STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 1, 2013 

RORY L. PERRY II, CLERK 

PEARL BARTON, WIDOW OF SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

CLARENCE BARTON, 

Claimant Below, Petitioner 

vs.) No. 12-0353 (BOR Appeal No. 2046288) 

(Claim No. 770012141) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

SOUTHERN APPALACHIAN COAL COMPANY, AND 

CEDAR COAL COMPANY, 

Employers Below, Respondent 

MEMORANDUM DECISION 

Petitioner Pearl Barton, by Robert Williams, her attorney, appeals the decision of the 

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

Commissioner, by Jon Snyder, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 16, 2012, in 

which the Board affirmed an August 4, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 29, 2009, 

decision denying Ms. Barton’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 

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

Procedure. 

Mr. Barton worked as a coal miner for over twenty years. He received a permanent 

partial disability award for occupational pneumoconiosis during his life. He passed away on 

October 11, 2008, and Ms. Barton requested dependent’s benefits. The Occupational 

Pneumoconiosis Board found that occupational pneumoconiosis did not materially contribute to 

Mr. Barton’s death on February 19, 2009. The claims administrator denied the request for 

dependent’s benefits on April 29, 2009. 

The Office of Judges affirmed the claims administrator’s decision, and held that the 

preponderance of the evidence supported the Occupational Pneumoconiosis Board’s finding that 

occupational pneumoconiosis did not materially contribute to Mr. Barton’s death. On appeal, Ms. 

Barton disagrees and asserts that Drs. Gaziano and Rasmussen found that occupational 

pneumoconiosis played a material contributing part in Mr. Barton’s death, and Dr. Kinder 

testified that this would be a case that physicians could disagree as to the role of occupational 

pneumoconiosis. The West Virginia Office of Insurance Commissioner maintains that Mr. 

Barton’s significant smoking history and other health problems caused his death, not 

occupational pneumoconiosis. Dr. Gaziano found on November 16, 2009, that chronic 

obstructive pulmonary disease caused Mr. Barton’s death which was to a great extent due to 

occupational pneumoconiosis. Dr. Rasmussen agreed with Dr. Gaziano and found that Mr. 

Barton’s occupational pneumoconiosis was a material contributing cause to his disabling and 

ultimately fatal chronic lung disease. On June 7, 2010, Dr. Fino found that Mr. Barton’s chronic 

obstructive pulmonary disease was due to his significant smoking history of up to eighty 

pack/years, which was almost four times the amount of pack/years of smoking than number of 

years working in the mines. Dr. Kinder, of the Occupational Pneumoconiosis Board testified on 

July 6, 2010, that the hospitalization was due to Mr. Barton’s chronic obstructive pulmonary 

disease relating to his seventy pack/years smoking history. 

In affirming the claims administrator’s decision, the Office of Judges noted Mr. Barton’s 

seventy pack/year smoking history and significant non-occupational related diseases such as 

atrial fibrillation, coronary disease, and renal insufficiency which can cause shortness of breath 

and pulmonary dysfunction. It further noted that there were no x-ray findings or pathology 

materials available, and Dr. Kinder found without that evidence he could not recommend that 

occupational pneumoconiosis played a material contributing factor in Mr. Barton’s death. The 

preponderance of the evidence does not establish that the Occupational Pneumoconiosis Board’s 

findings were clearly wrong. The Board of Review reached the same reasoned conclusions in its 

decision of February 16, 2009. 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 

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. 

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Affirmed. 

ISSUED: November 1, 2013 

CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

Chief Justice Brent D. Benjamin, disqualified 

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