STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

February 20, 2013
 

RORY L. PERRY II, CLERK
 

DORA QUEEN, WIDOW OF NOLAN QUEEN, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0871	 (BOR Appeal No. 2045318) 

(Claim No. 770089565) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

CONNORS STEEL COMPANY HUNTINGTON WORKS, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Dora Queen, 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 Mary Rich Maloy, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated May 5, 2011, in which 

the Board affirmed an October 28, 2010, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s May 21, 2008, decision 

denying Ms. Queen’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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Nolan Queen passed away on March 23, 2007. Mr. Queen received a permanent partial 

disability award for occupational pneumoconiosis during his life. His death certificate listed the 

immediate cause of death as chronic obstructive pulmonary disease with asbestosis and cigarette 

smoking as underlying causes, and other significant conditions were heart failure and atrial 

fibrillation. On May 21, 2008, the claims administrator denied Ms. Queen’s request for 

dependent’s benefits because occupational pneumoconiosis was not a contributing factor in the 

death of the decedent, relying on the Occupational Pneumoconiosis Board’s findings of April 1, 

2008. 

The Office of Judges affirmed the claims administrator’s Order, and concluded that the 

preponderance of the evidence established that occupational pneumoconiosis did not cause, nor 

materially contribute to the decedent’s death. On appeal, Ms. Queen disagrees and asserts that 

the evidence, namely the reports of Drs. Gaziano and Rasmussen, establish that occupational 

pneumoconiosis was a material contributing factor in her husband’s death and she is entitled to 

dependent’s benefits. Both Drs. Gaziano and Rasmussen concluded that the decedent’s 

occupational exposure was a material contributing factor in his death, however Dr. Rasmussen 

found that the respiratory disease was caused in significant part by cigarette smoking, and Dr. 

Gaziano also mentioned the smoking history. The Occupational Pneumoconiosis Board found 

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

In affirming the claims administrator’s Order, the Office of Judges found that the 

Occupational Pneumoconiosis Board’s findings and testimony were supported by a 

preponderance of the evidence. The Office of Judges noted that the Occupational 

Pneumoconiosis Board carefully considered all the evidence, and that the decedent had a 

significant smoking history. It further pointed out that Drs. Gaziano and Rasmussen had 

attributed pulmonary impairment to the significant smoking history. The Office of Judges 

concluded that the claims administrator correctly rejected Ms. Queen’s request for dependent’s 

benefits. The Board of Review reached the same reasoned conclusions in its decision of May 5, 

2011. 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. 

Affirmed. 

ISSUED: February 20, 2013 

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CONCURRED IN BY: 

Justice Robin J. Davis 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISSENTING: 

Chief Justice Brent D. Benjamin 

Justice Margaret L. Workman 

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