STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 12, 2014 

RORY L. PERRY II, CLERK 

AUDRA GRAHAM, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

WIDOW OF BOBBY GRAHAM, 

Claimant Below, Petitioner 

vs.) No. 13-1059	 (BOR Appeal No. 2048253) 

(Claim No. 840069331) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

APOGEE COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Audra Graham, pro se, appeals the decision of the West Virginia Workers’ 

Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by 

Noah Barnes, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 23, 2013, in 

which the Board affirmed a March 6, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 6, 2011, 

decision denying Ms. Graham’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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Ms. Graham filed a claim for dependent’s benefits following the August 21, 2005, death 

of her husband, Bobby. Prior to his death the decedent underwent treatment for small cell 

carcinoma of the lung, which eventually metastasized to his brain. A death summary issued on 

August 21, 2005, indicated that the decedent’s final diagnoses were uncontrolled pain, anemia, 

shortness of breath, small cell lung carcinoma, and brain metastasis. The decedent’s death 

certificate lists the immediate cause of death as cancer of the lung with a reoccurrence and lists 

the secondary causes of death as brain metastasis, status-post chemotherapy, and malnutrition. 

An autopsy of the lungs was performed and a report was issued on September 8, 2005. The 

autopsy report noted the presence of small cell carcinoma in the right main bronchus, with spread 

to the right upper and middle lobes and metastases to the hilar lymph nodes and left lower lobe; a 

right hydrothorax; pleural adhesions; panacinar emphysema; and mild anthracosis with no coal 

nodules present on microscopic examination. On December 16, 2010, the Occupational 

Pneumoconiosis Board concluded that occupational pneumoconiosis did not materially 

contribute to the decedent’s death. The Occupational Pneumoconiosis Board noted that the 

decedent had received a lifetime award of 5% for occupational pneumoconiosis, and determined 

that x-rays obtained on December 2, 1988, although initially interpreted as positive for the 

presence of occupational pneumoconiosis, revealed minimal changes at best. On January 6, 

2011, the claims administrator denied Ms. Graham’s application for dependent’s benefits. 

At a hearing on January 9, 2013, the members of the Occupational Pneumoconiosis 

Board testified that occupational pneumoconiosis did not materially contribute to the decedent’s 

death. Jack Kinder, M.D., testified on behalf of the Occupational Pneumoconiosis Board that 

there are numerous reports in the evidentiary record identifying the decedent’s main cause of 

death as carcinoma of the lung, and opined that metastasis to the decedent’s central nervous 

system was the ultimate cause of his death. Dr. Kinder further testified that because coal nodules 

were not identified during the autopsy, the autopsy did not uncover evidence of coal worker’s 

pneumoconiosis and the decedent’s death therefore cannot be attributed to coal dust exposure. 

Finally, Dr. Kinder testified that the autopsy report, death summary, and death certificate all 

support the Occupational Pneumoconiosis Board’s conclusion that occupational pneumoconiosis 

did not materially contribute to the decedent’s death. 

In its Order affirming the January 6, 2011, claims administrator’s decision, the Office of 

Judges held that occupational pneumoconiosis did not materially contribute to the decedent’s 

death. On appeal, Ms. Graham requests an award of dependent’s benefits. 

In Bradford v. Workers’ Compensation Comm’r, Syl. Pt. 3, 185 W.Va. 434, 408 S.E.2d 

13 (1991), this Court held that in order to establish entitlement to dependent’s benefits, a 

claimant must show that an occupational disease or injury “contributed in any material degree to 

the death.” The Office of Judges found that the Occupational Pneumoconiosis Board’s 

conclusion that occupational pneumoconiosis did not materially contribute to the decedent’s 

death is credible. In particular, the Office of Judges took note of the Occupational 

Pneumoconiosis Board’s finding that numerous reports list carcinoma of the lung as the 

immediate cause of death, and further noted the Occupational Pneumoconiosis Board’s finding 

that metastasis to the decedent’s brain ultimately caused his death. Finally, the Office of Judges 

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relied on the Occupational Pneumoconiosis Board’s conclusion that an autopsy did not produce 

evidence of coal worker’s pneumoconiosis but did confirm the presence of small cell lung 

carcinoma. The Board of Review reached the same reasoned conclusions in its decision of 

September 23, 2013. We agree with the reasoning and conclusions of the Board of Review. The 

evidence of record does not support a finding that occupational pneumoconiosis materially 

contributed to the decedent’s death. 

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: November 12, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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