STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 2, 2014 

RORY L. PERRY II, CLERK 

REBA LUCAS, WIDOW OF SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

JIMMY LUCAS (DECEASED), 

Claimant Below, Petitioner 

vs.) No. 13-1143 (BOR Appeal No. 2048343) 

(Claim No. 980043463) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER, 

Commissioner Below, Respondent 

TONEY’S BRANCH COAL COMPANY, 

Employer Below, Respondent 

AUGUSTA PROCESSING, INC., 

Employer Below, Respondent 

and 

WILLIAMS MOUNTAIN COAL COMPANY 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Reba Lucas, widow of Jimmy Lucas, by Robert L. Stultz, 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 October 23, 2013, in 

which the Board affirmed an April 26, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 16, 2010, 

decision denying Mrs. Lucas’s request for dependent’s benefits based on her husband’s death. 

The Court has carefully reviewed the records, written arguments, and appendices contained in 

the briefs, and the case is mature for consideration. 

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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. 

Mr. Lucas worked as a coal miner for nearly thirty years. He was working for Toney’s 

Branch Coal Company in 1997 when he retired. He then filed an application for workers’ 

compensation benefits based on his exposure to the hazards of occupational pneumoconiosis. 

The Occupational Pneumoconiosis Board considered Mr. Lucas’s application, and he was 

granted a presumptive 10% permanent partial disability award based on the Occupational 

Pneumoconiosis Board’s findings. It reconsidered Mr. Lucas’s claim three years later and 

determined that there was no increase in his pulmonary impairment related to occupational 

pneumoconiosis. Following this determination, the United States Department of Labor granted 

Mr. Lucas a federal award for black lung. 

On June 28, 2009, Mr. Lucas died. His death certificate listed the cause of death as 

chronic obstructive pulmonary disease and pneumoconiosis. Mrs. Lucas filed an application for 

dependent’s benefits based on Mr. Lucas’s death. William Houser, M.D., evaluated Mr. Lucas’s 

records and determined that his chronic obstructive pulmonary disease was a consequence of 

exposure to coal dust as well as cigarette smoking. Dr. Houser found that inhalation of coal and 

rock dust was a substantial factor in Mr. Lucas’s death. The Occupational Pneumoconiosis Board 

then considered Mrs. Lucas’s application. It determined, based on its prior examinations, that 

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

Occupational Pneumoconiosis Board found that there was very minimal change in the nodular 

fibrosis in his lungs consistent with occupational pneumoconiosis. It also found no pleural 

plaques. On July 16, 2010, the claims administrator denied Mrs. Lucas’s request for dependent’s 

benefits. The United States Department of Labor, however, granted Mrs. Lucas dependent’s 

benefits for federal black lung based on Mr. Lucas’s death. Gregory J. Fino, M.D., also reviewed 

Mr. Lucas’s records and determined that occupational pneumoconiosis did not contribute to his 

death. Dr. Fino found that Mr. Lucas’s respiratory impairment was due to cigarette smoking and 

there was no radiographic evidence of occupational pneumoconiosis. The Occupational 

Pneumoconiosis Board then testified in a hearing before the Office of Judges. On behalf of the 

Occupational Pneumoconiosis Board, Jack L. Kinder, M.D., testified that Mr. Lucas’s chronic 

obstructive pulmonary disease, which caused his death, was related to his significant history of 

cigarette smoking. Dr. Kinder estimated that Mr. Lucas smoked between a half to a full pack of 

cigarettes per day for nearly fifty years prior to his death. Dr. Kinder concluded that occupational 

pneumoconiosis did not materially contribute to Mr. Lucas’s death. On April 26, 2013, the 

Office of Judges affirmed the claims administrator’s decision. The Board of Review affirmed the 

Order of the Office of Judges on October 23, 2013, leading Mrs. Lucas to appeal. 

The Office of Judges concluded that occupational pneumoconiosis was not a material, 

contributing factor in Mr. Lucas’s death. In reaching this determination, the Office of Judges 

relied on the report and hearing testimony of the Occupational Pneumoconiosis Board. The 

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Office of Judges determined that the Occupational Pneumoconiosis Board consistently found 

that occupational pneumoconiosis did not contribute to Mr. Lucas’s death. The Board of Review 

adopted the findings of the Office of Judges and affirmed its Order. 

We agree with the conclusions of the Board of Review and the findings of the Office of 

Judges. Mrs. Lucas has not demonstrated that she is entitled to dependent’s benefits based on her 

husband’s death. The evidence in the record does not show that occupational pneumoconiosis 

“contributed in any material degree” to Mr. Lucas’s death. Bradford v. Workers’ Comp. Comm’r, 

185 W. Va. 434, 442, 408 S.E.2d 13, 21 (1991). The Occupational Pneumoconiosis Board 

consistently determined that Mr. Lucas’s death was related to chronic obstructive pulmonary 

disease due to his significant history of smoking. The Office of Judges properly accorded this 

medical determination “considerable deference” in reaching its own conclusion. Fenton Art 

Glass Co. v. W. Va. Office of Ins. Comm’r, 222 W. Va. 420, 431, 664 S.E.2d 761, 772 (2008). 

Mrs. Lucas has not presented sufficient evidence undermining the credibility of the Occupational 

Pneumoconiosis Board’s findings. Although Dr. Houser believed that Mr. Lucas’s lung problems 

were related to occupational pneumoconiosis, his opinion is not supported by the remainder of 

the evidence in the record. The Office of Judges was justified in relying on the Occupational 

Pneumoconiosis Board’s opinion. 

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: December 2, 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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