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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 Workers’ Compensation Board of Review. West 

Virginia Office of the Insurance Commissioner, by Mary Rich Malloy, 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, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges reversed the claims administrator’s January 3, 2012, 

decision to deny dependent’s benefits. The Office of Judges awarded Ms. Harper 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 

FILED 

October 14, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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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 employment 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 breath, and increasing confusion. Mr. Harper was 

diagnosed with chronic obstructive pulmonary disease, coal miner’s occupational 

pneumoconiosis, heart disease, hypertension, cholestectomy, and diabetes. Eventually, Mr. 

Harper’s breathing became so taxed that he had to be placed on a ventilator. A CTA report and 

x-rays showed bilateral pneumonia, pulmonary vascular congestion, or a combination of both. 

On July 25, 2010, Mr. Harper passed away. The final diagnosis reported by Ramon C. 

Jereza, M.D., was adult respiratory distress syndrome, bilateral pneumonia, advanced chronic 

obstructive pulmonary disease due to coal miner’s pneumoconiosis, hypertensive and 

arteriosclerotic heart disease with coronary artery disease, and cardiomyopathy. Mrs. Harper, Mr. 

Harper’s widow, filed an application for dependent’s benefits asserting that her husband’s 

occupational pneumoconiosis materially contributed his death. Dr. Jereza 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 was not related to occupational 

pneumoconiosis but rather to idiopathic pulmonary fibrosis. The Occupational Pneumoconiosis 

Board explained that the x-rays did not reveal rounded opacities consistent with coal dust 

exposure. The Occupational Pneumoconiosis Board explained that the pulmonary fibrosis 

experienced by Mr. Harper was more typical of asbestosis exposure and not coal dust exposure. 

However, the Occupational Pneumoconiosis Board’s final conclusion was that the images 

showed idiopathic pulmonary fibrosis probably secondary to chronic gastroesophageal reflux. 

On October 3, 2012, D. L. Rasmussen, M.D., performed a record review. Dr. Rasmussen 

stated that there was ample evidence to conclude that Mr. Harper suffered from occupational 

lung disease including occupational pneumoconiosis, which was responsible for his diffuse 

interstitial fibrosis. Dr. Rasmussen stated that Mr. Harper’s occupational pneumoconiosis was 

therefore a material contributing cause of his death. However, Gregory Fino, M.D., stated that a 

CT scan of the chest performed on June 22, 2008, showed interstitial fibrosis with honeycombing 

of the peripheral lungs consistent with pneumoconiosis or idiopathic pulmonary fibrosis. Dr. 

Fino stated that honeycombing and fibrosis are not consistent with 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 pneumoconiosis did not cause his disability, 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 administrator denied the application for dependent’s benefits. 
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The Office of Judges determined that occupational pneumoconiosis materially 

contributed to Mr. Harper’s death and awarded dependent’s benefits. The Office of Judges, in its 

analysis determined that an equal amount of weight existed on both 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 deny dependent’s benefits. 

The Board of Review disagreed with the Office 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 Occupational Pneumoconiosis Board made following 

[the] hearing unless the decision 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 Pneumoconiosis Board’s decision was 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 clearly 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. Harper 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. Harper’s life showed pretty good lung function. At the 

end of his life, lung function dropped dramatically. Dr. Kinder noted that this supported his 

conclusion that idiopathic pulmonary fibrosis was 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 Pneumoconiosis 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 decision must be upheld. 

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: 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