STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

February 20, 2013
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 JACQUELINE SMITH, WIDOW OF OF WEST VIRGINIA 

DANIEL CARL SMITH, 

Claimant Below, Petitioner 

vs.) No. 11-0840	 (BOR Appeal No. 2045164) 

(Claim No. 980054591) 

WEST VIRGINIA OFFICE OF
 

INSURANCE COMMISSIONER
 

Commissioner Below, Respondent
 

and
 

DIVITA COAL COMPANY, INC.,
 

and MAPTONA INC.,
 

Employers Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Jacqueline Smith, 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 April 26, 2011, in 

which the Board affirmed a September 21, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 28, 2008, 

decision denying Ms. Smith’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. 

Daniel Carl Smith worked as a coal miner for Maptona, Inc. and Divita Coal Company. 

He passed away at home on April 11, 2007. An autopsy was performed, but was limited to the 

lungs. On February 28, 2008, the claims administrator denied Ms. Smith’s application for 

dependent’s benefits. 

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

occupational pneumoconiosis did not materially contribute to the decedent’s death. Ms. Smith 

disputes that finding, and argues that several doctors found that occupational pneumoconiosis 

materially contributed to her husband’s death, and it was found on the autopsy, therefore she 

should be granted dependent’s benefits. Dr. Gaziano on April 22, 2009, concluded that 

occupational pneumoconiosis was a significant contributory factor in Mr. Smith’s death; he 

noted that the death certificate stated Mr. Smith died a respiratory death. Dr. Crouch found that 

that the cause of death could not be definitively established based on the autopsy because the 

post-mortem exam was restricted to the lungs; however, he noted that no lesions of coal worker’s 

pneumoconiosis were observed. The Occupational Pneumoconiosis Board concluded that 

occupational pneumoconiosis was not a material contributing factor in Mr. Smith’s death. 

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

testimony and conclusions of the Occupational Pneumoconiosis Board were persuasive in that 

occupational pneumoconiosis was not a material contributing factor in Mr. Smith’s death. The 

Office of Judges noted that the testimony of Dr. Kinder indicated that there was evidence of a 

one to two pack per day smoking habit, that the information related to the decedent’s death was 

unclear, and that the autopsy was limited. The Office of Judges concluded that occupational 

pneumoconiosis did not materially contribute to the decedent’s death, and therefore Ms. Smith 

was not entitled to dependent’s benefits. The Board of Review reached the same reasoned 

conclusions in its decision of April 26, 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 

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Justice Margaret L. Workman
 

Justice Menis E. Ketchum
 

Justice Allen H. Loughry II
 

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