June Ash, Widow of Roy D. Ash v. Glaspell Lumber Co., Inc. ( 2022 )

FILED
January 11, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JUNE ASH, WIDOW OF ROY D. ASH,
Claimant Below, Petitioner
vs.) No. 20-0607 (BOR Appeal No. 2055290)
(Claim No. 2017002170)
GLASPELL LUMBER CO., INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner June Ash, widow of Roy D. Ash, by Counsel J. Thomas Greene Jr., appeals the
decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
Glaspell Lumber Co., Inc., by Counsel H. Toney Stroud, filed a timely response.
The issue on appeal is dependent’s benefits. The claims administrator denied a request for
dependent’s benefits on December 17, 2018. The Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the decision in its April 20, 2020, Order. The Order was affirmed
by the Board of Review on July 8, 2020.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning and conclusions.
(c) If the decision of the board represents an affirmation of a prior ruling by
both the commission and the office of judges that was entered on the same issue in
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the same claim, the decision of the board may be reversed or modified by the
Supreme Court of Appeals only if the decision is in clear violation of Constitutional
or statutory provision, is clearly the result of erroneous conclusions of law, or is
based upon the board’s material misstatement or mischaracterization of particular
components of the evidentiary record. The court may not conduct a de novo re-
weighing of the evidentiary record.
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Ash was a plant worker for forty-four years, during which time he was exposed to
hazardous dust. An April 15, 2015, CT scan of the lungs showed findings suggestive of pulmonary
fibrosis. There were no acute infiltrates or pulmonary fibrosis nodules.
The Occupational Pneumoconiosis Board (“OP Board”) testified in a March 21, 2018,
hearing. Johnsey Leef, M.D., testified on behalf of the Board that he reviewed the chest x-rays and
diagnosed occupational pneumoconiosis. Jack Kinder, M.D., agreed with the diagnosis and opined
that the East Ohio Regional pulmonary studies showed total impairment. Dr. Kinder stated that he
was not sure why the OP Board previously found that Mr. Ash had 30% impairment attributable
to occupational exposure and the remaining impairment was due to nonoccupational causes. Dr.
Kinder testified that the OP Board reviewed Dr. Lenkey’s report, in which he opined that Mr. Ash
had 50% impairment due to asbestosis. Dr. Kinder stated that it was difficult to disagree with Dr.
Lenkey’s finding. He noted that Mr. Ash smoked two packs of cigarettes a day for twenty to thirty
years. Dr. Kinder believed that there was enough disease process visible on Mr. Ash’s chest x-rays
to find 50% impairment attributable to occupational pneumoconiosis. However, Dr. Kinder stated
that he felt uncomfortable making that recommendation in an initial evaluation without first
reviewing a CT scan. Dr. Leef testified that he saw no evidence of pleural plaques or calcified
plaques on x-rays. He stated that he was comfortable with 30% or 50% impairment, but he would
like to review additional information before changing the OP Board’s finding to 50% impairment.
A Death Certificate indicates Mr. Ash died on July 27, 2018. The primary cause of death
was listed as nonalcoholic hepatic cirrhosis. An autopsy was not performed. The OP Board
reviewed Mr. Ash’s claim as a fatal claim on October 4, 2018. It found that Mr. Ash was seventy-
one years old at the time of his death. He worked as a plant worker and had a history of significant
dust exposure. The Board concluded, however, that occupational pneumoconiosis was not a
material contributing factor in Mr. Ash’s death. The OP Board noted that it reviewed chest x-rays
and found nodular fibrosis throughout both lungs consistent with occupational pneumoconiosis.
Based on the OP Board’s findings, the claims administrator denied Mrs. Ash’s request for
dependent’s benefits on December 17, 2018.
The OP Board testified in a January 9, 2019, hearing in Mr. Ash’s living impairment claim.
Jack Willis, M.D., stated that he reviewed an April 15, 2015, CT scan of Mr. Ash’s chest. The
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findings were consistent with asbestosis and simple occupational pneumoconiosis. Dr. Kinder
agreed with Dr. Willis’s opinion and further opined that there was enough evidence to find 50%
impairment due to Mr. Ash’s occupational dust exposure.
The Office of Judges affirmed the claims administrator’s denial of the request for
dependent’s benefits in its April 20, 2020, Order. It found that the OP Board was not clearly wrong
to find that the occupational pneumoconiosis did not materially contribute to Mr. Ash’s death. The
death certificate indicates he died as a result of nonalcoholic hepatic cirrhosis. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on July 8, 2020.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The standard for granting dependent’s benefits is not whether
the employee’s death was the result of the occupational disease exclusively, but whether the
occupational disease contributed in any material degree to the death. Bradford v. Workers’ Comp.
Comm’r, 185 W. Va. 434, 408 S.E.2d 13 (1991). West Virginia Code § 23-4-6a provides that 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.” Mr. Ash’s death certificate indicates he died as a result
of nonalcoholic hepatic cirrhosis. While Mr. Ash did suffer from impairment due to occupational
pneumoconiosis, there is no indication in the record that the condition materially contributed to
his death.
Affirmed.
ISSUED: January 11, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
DISQUALIFIED:
Justice Evan H. Jenkins
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