STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

February 20, 2013
 

RORY L. PERRY II, CLERK
 

ELOISE DANKO, WIDOW OF SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

GEORGE DANKO, 

Claimant Below, Petitioner 

vs.) No. 11-0870	 (BOR Appeal No. 2045316) 

(Claim No. 2001037760) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

PECHINEY ROLLED PRODUCTS, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Eloise Danko, by Robert Williams, her attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Alcan Rolled Products, LLC, by H. 

Toney Stroud, 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 a November 3, 2010, Order of the Workers’ Compensation Office of Judges. 

In its Order, the Office of Judges affirmed the claims administrator’s August 27, 2008, decision 

denying Ms. Danko’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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Mr. Danko worked for Pechiney Rolled Products for thirty-five years. He had received a 

prior 10% permanent partial disability award for occupational pneumoconiosis. He passed away 

on July 4, 2007. On August 27, 2008, the claims administrator denied Ms. Danko’s request for 

dependent’s benefits. 

The Office of Judges held that the evidence did not demonstrate that occupational 

pneumoconiosis played a material contributing role in the death of Mr. Danko. On appeal, Ms. 

Danko 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. Drs. Gaziano and Rasmussen 

concluded that the decedent’s occupational exposure to asbestos was sufficient to have caused or 

contributed to the development of Mr. Danko’s lung cancer. Drs. Craighead and Renn disagreed 

and found that asbestosis must be present to attribute lung cancer to occupational exposure, and 

asbestosis was not present. The Occupational Pneumoconiosis Board found that no asbestos 

fibers were found during the autopsy, nor was there evidence of asbestosis in this case. 

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

Occupational Pneumoconiosis Board’s findings and testimony were not clearly wrong to 

conclude that occupational pneumoconiosis did not play a material contributing role in the 

decedent’s death. The Occupational Board’s chairman, Dr. Kinder, testified that the largest body 

of knowledge asserts that asbestosis is necessary to attribute a patient’s occupational exposure to 

lung cancer. The Office of Judges found that the decedent did not have asbestosis or physical 

evidence of asbestos exposure. It concluded that the preponderance of the evidence did not 

support Ms. Danko’s application 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 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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