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### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

LAVERNE HARPER, WIDOW OF JOHN R. HARPER, DECEASED Claimant Below, Petitioner

vs.) No. 14-0470 (BOR Appeal No. 2048944) (Claim No. 2011012894)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER Commissioner Below, Respondent

and

PERRY & HYLTON, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Laverne Harper, widow of John R. Harper, by Reginald D. Henry, her attorney, appeals the decision of the West Virginia Wo rkers’ Compensation Board of Review. West Virginia Office of the Insuran ce Commissioner, by Mary Rich Mall oy, its attorney, filed a timely

response.

This appeal arises from the Board of Review’s Final Order dated April 16, 2014, in which the Board reversed an October 11, 2013, Or der of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges reve rsed the claims administrator’s January 3, 2012, decision to deny dependent’s benefits. The Offi ce of Judges awarded Ms. Harper dependent’s benefits. The Court has carefully reviewed the records, writ ten 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these FILED

October 14, 2015
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Mr. Harper, a coal miner for Perry & Hylton, Inc., developed occupational pneumoconiosis in the course of and as a result of his empl oyment and was granted a 25% permanent partial disability award in 1983. On June 18, 2010, Mr . Harper reported to Raleigh General Hospital with a cough, shortness of br eath, and increasing conf usion. Mr. Harper was diagnosed with chronic obstructive pulmona ry disease, coal miner’s occupational pneumoconiosis, heart disease, hypertension, c holestectomy, and diabetes. Eventually, Mr. Harper’s breathing became so taxed that he ha d to be placed on a ven tilator. A CTA report and x-rays showed bilateral pneumonia, pulmonary va scular congestion, or a combination of both.

On July 25, 2010, Mr. Harper passed away. Th e final diagnosis reported by Ramon C. Jereza, M.D., was adult respiratory distress s yndrome, bilateral pneumonia, advanced chronic obstructive pulmonary disease due to coal miner’s pneumoconiosi s, hypertensive and

arteriosclerotic heart disease w ith coronary artery disease, a nd cardiomyopathy. Mrs. Harper, Mr. Harper’s widow, filed an applic ation for dependent’s benefits asserting that her husband’s occupational pneumoconiosis materially contri buted his death. Dr. Je reza testified on May 2, 2011, and opined that occupational pneumoconiosis materially contributed to Mr. Harper’s death. The case was referred to the Occupational Pneumoconiosis Board for review. The Occupational Pneumoconiosis Board led by Jack L. Kinder, Jr., M.D., determined that based upon the x-rays and the clinical history, Mr. Harper’s death wa s not related to occupational pneumoconiosis but rather to id iopathic pulmonary fibrosis. Th e Occupational Pneumoconiosis Board explained that the x-rays did not reveal rounded opacities consistent with coal dust exposure. The Occupational Pneumoconiosis Bo ard explained that the pulmonary fibrosis experienced by Mr. Harper was mo re typical of asbestosis expos ure and not coal dust exposure. However, the Occupational Pneumoconiosis Boar d’s final conclusion was that the images showed idiopathic pulmonary fi brosis probably secondary to ch ronic gastroesophageal reflux.

On October 3, 2012, D. L. Rasmussen, M.D., pe rformed a record review. Dr. Rasmussen stated that there was ample evidence to concl ude that Mr. Harper suffered from occupational lung disease including occupational pneumoconi osis, which was responsible for his diffuse

interstitial fibrosis. Dr. Rasmussen stated th at Mr. Harper’s occupational pneumoconiosis was therefore a material contributing cause of his death. However, Gr egory Fino, M.D., stated that a CT scan of the chest performed on June 22, 2008, s howed interstitial fibr osis with honeycombing of the peripheral lungs consiste nt with pneumoconiosis or idi opathic pulmonary fibrosis. Dr. Fino stated that honeycombing and fibrosis are not consistent w ith occupational pneumoconiosis

due to coal mine dust. Dr. Fino stated that this finding would be consistent with pneumoconiosis

from asbestosis. Dr. Fino also stated that Mr. Harper has no history of asbestos exposure. Dr. Fino opined that occupational pneum oconiosis did not cause his di sability, nor did it cause his death. Dr. Fino stated that Mr. Harper died as a result of a disease of the general medical population, adult respiratory distress syndrome. Based upon the report of the Occupational Pneumoconiosis Board, the claims ad ministrator denied the application for dependent’s benefits.3 The Office of Judges determined that occupational pneumoconiosis materially contributed to Mr. Harper’s death and awarded de pendent’s benefits. The Of fice of Judges, in its analysis determined that an e qual amount of weight existed on bot h sides of the issue. Because equal weight existed for both granting dependent ’s benefits and denying dependent’s benefits, the Office of Judges determined that pursuant to West Virginia Code § 23-4-1g(a) (2003) that when an equal amount of evidentiary weight exists “the resolution that is most consistent with the claimant’s position will be adopted.” The Office of Judges overturned the claims

administrator’s decision to de ny dependent’s benefits.

The Board of Review disagreed with the Offi ce of Judges and reversed its decision. The Board of Review noted that pursuant to West Virginia Code § 23-4-6a (2003), the Office of Judges “shall affirm the decision of the Occ upational Pneumoconiosis Board made following [the] hearing unless the decisi on is clearly wrong in view of the reliable, probative and

substantial evidence on the whole record.” The Board of Review then noted that the Office of Judges determined that an equal amount of weight existed for both sides of the issue. The Board

of Review also noted that the Occupational Pneumoconiosis Board found that occupational pneumoconiosis did not materially contribute to Mr. Harper’s death. The Board of Review determined that the Occupational Pneumoconios is Board’s decision wa s not clearly wrong in light of the evidence of record. The Board of Review reinstated the claims administration’s decision to deny dependent’s benefits.

We agree with the decision of the Board of Review. In this case the Occupational

Pneumoconiosis Board has clea rly demonstrated that it believes the cause of death was idiopathic pulmonary fibrosis. The Occupational Pneumoconiosis Board reviewed the x-rays and CT scans and determined that the opacities seen on the films were not caused by coal mine dust exposure. Dr. Kinder stated that coal miner’s occupational pneumoconiosis is characterized by rounded opacities not irregular opacities. Mr. Harp er had irregular opacities, which could have been indicative of asbestos exposure but not coal dust exposure. Dr. Kinder opined that the spirometry readings up to the end of Mr. Harp er’s life showed pretty good lung function. At the end of his life, lung function dropped dramati cally. Dr. Kinder noted that this supported his conclusion that idiopathic pulmonary fibrosis wa s the cause of death instead of coal workers’ occupational pneumoconiosis. Pursuant to West Virginia Code § 23-4- 6a and the holding in Fenton Art Glass Co. v. West Virginia Office of the Insurance Commissioner , 222 W. Va. 420, 664 S.E.2d 761 (2008), the Occupational Pneumoconios is Board is given deference in medical findings and can only be ignored when “clearly wrong.” Because there is not enough evidence in the record to show that the Occupational Pneumoconiosis Board’s determination is clearly wrong, the Board of Review’s de cision must be upheld.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.4 Affirmed.



### ISSUED: October 14, 2015

CONCURRED IN BY:

Justice Robin J. Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II



### DISSENTING:
Chief Justice Margaret L. Workman