Deborah Schultz, Widow of Robert A. Schultz v. Hobet Mining, LLC ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
DEBORAH SCHULTZ, WIDOW OF ROBERT A. SCHULTZ,
Claimant Below, Petitioner
vs.) No. 20-0689 (BOR Appeal No. 2055241)
(Claim No. 2008030550)
HOBET MINING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Deborah Schultz, widow of Robert A. Schultz, by Counsel John H. Skaggs,
appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of
Review”). Hobet Mining, LLC, by Counsel H. Toney Stroud, filed a timely response.
The issue on appeal is dependent’s benefits. The claims administrator denied Ms. Schultz’s
request for dependent’s benefits on December 20, 2018. The Workers’ Compensation Office of
Judges (“Office of Judges”) affirmed the decision in its February 21, 2020, Order. The Order was
affirmed by the Board of Review on August 11, 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. Schultz was a coal miner for over thirty years. A chest x-ray was performed on
November 14, 2015, and showed suspected emphysematous changes of the lungs and atelectasis
and/or fibrosis of the lung bases. It was noted that the study was similar to a prior study. It was
also noted that there were probably no acute infiltrates. A chest CT scan was also performed that
day and showed no pulmonary emboli and a small granuloma unchanged from a prior study. A
January 19, 2016, chest x-ray showed no acute findings. There was suspected parenchymal
scarring in the lower lungs that was unchanged from a prior study. A CT scan was also performed
that day and showed new small areas of airspace consistent with pneumonia. It also showed chronic
obstructive pulmonary disease and mild adenopathy.
A chest x-ray showed emphysema and lymphadenopathy on February 8, 2016. A CT scan
performed that day showed a questionable nodular density in the right lower lobe and mildly
enlarged lymph nodes. A PET scan was performed on February 17, 2016, due to abnormal CT
scan results. The PET scan revealed narrowing of the right bronchus intermedius greater than was
observed nine days prior. The scan also showed a positive right lung base nodule. A May 19, 2016,
chest CT scan showed a right lower lobe nodule that appeared to be smaller than seen on a prior
scan. Nodules in the right upper and middle lobes were unchanged. Narrowing of the right
bronchus had decreased since the previous scan.
Mr. Schultz’s Death Certificate indicates he passed away primarily due to small cell lung
cancer with metastasis. Other conditions were noted as chronic obstructive pulmonary disease and
coronary artery disease. A July 13, 2018, Black Lung Benefits application indicates Mr. Schultz
was exposed to asbestos, silica, diesel, gas, coal dust, and blasting rock in the course of his
employment. An attached work history report indicates Mr. Schultz was exposed to the following
products containing asbestos: clutches, brakes, gaskets, and pipe insulation.
Brett Oesterling, M.D., reviewed slides of Mr. Schultz’s lung tissue and a record of the
case. In his July 31, 2018, report, he opined that the lung tissue and lymph node samples showed
minimal dust exposure, emphysema, suggestions of congestion due to heart failure, acute
pneumonia, and evidence of thromboembolus. Dr. Oesterling concluded that the lack of significant
structural damage in the lungs due to coal dust precludes coal dust as a significant factor in Mr.
Schultz’s death. Dr. Oesterling felt that Mr. Schultz’s smoking history caused the changes in his
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lungs that resulted in his death. The Occupational Pneumoconiosis Board’s October 2, 2018,
findings indicate it concluded that occupational pneumoconiosis was not a material contributing
factor in Mr. Schultz’s death. The claims administrator denied the request for dependent’s benefits
on December 20, 2018.
Charles Werntz, D.O., performed a Record Review on May 6, 2019, to address Mr.
Schultz’s cause of death. Dr. Werntz stated that there was no evidence in Mr. Schultz’s autopsy of
complicated or progressive fibrosis in the lungs and no asbestos bodies were seen. Dr. Werntz did
feel, however, that Mr. Schultz had significant asbestos exposure while working as a mechanic.
He also had a significant smoking history. Dr. Werntz stated that Mr. Schultz had a lot of exposure
to silica and was diagnosed with black lung disease before his death. Mr. Schultz died as a result
of small cell lung cancer, and tobacco smoke and silica exposure are associated with the disease.
Dr. Werntz concluded that Mr. Schultz’s cancer risk was increased by his smoking history and
silica exposure. He noted that without the silica exposure, Mr. Schultz may not have developed
lung cancer.
The Occupational Pneumoconiosis Board testified in a July 10, 2019, hearing. Jack Kinder,
M.D., testified on behalf of the Board that a diagnosis of occupational pneumoconiosis could not
be made in this case. He stated that though the pathological study showed refractory silica
fragments, there was no evidence of fibrosis. Dr. Kinder stated that he had reviewed reports stating
that silica is a carcinogen or possible carcinogen but disagreed that it results in small cell cancer.
Dr. Kinder agreed with Dr. Oesterling’s finding that coal dust did not contribute to Mr. Schultz’s
death. Dr. Kinder further agreed that Mr. Schultz’s death was likely the result of his significant
smoking history.
Johnsey Leef, M.D., testified on behalf of the Occupational Pneumoconiosis Board in a
December 18, 2019, hearing that he reviewed chest x-rays and a CT scan taken approximately
three months before Mr. Schultz passed away. Dr. Leef stated that he found no nodular fibrosis
patterns consistent with occupational pneumoconiosis. Dr. Leef noted scarring due to Mr.
Schultz’s cancer treatment. Dr. Kinder testified that his opinion remained unchanged. Dr. Kinder
was asked whether small cell lung cancer is associated with asbestos, and he acknowledged that it
is; however, Dr. Kinder noted that there was no asbestos exposure in this case. Dr. Kinder stated
that Mr. Schultz’s lung cancer resolved after treatment, but the disease had metastasized to his
brain, resulting in his death. Dr. Kinder asserted that Mr. Schultz would have died when and how
he did regardless of his occupational exposure.
The Office of Judges affirmed the claims administrator’s denial of dependent’s benefits in
its February 21, 2020, Order. The Office of Judges noted that the Occupational Pneumoconiosis
Board testified in two hearings that occupational pneumoconiosis did not materially contribute to
Mr. Schultz’s death. Dr. Kinder acknowledged that asbestos exposure can cause small cell lung
cancer, but the Office of Judges found that the in-depth lung tissue analysis that Dr. Oesterling
performed showed no signs of asbestos fibers or asbestosis. There were signs of silica fibers, but
the Board testified that there was insufficient evidence to link silica exposure to small cell cancer.
The Office of Judges concluded that Mrs. Schultz failed to show that occupational pneumoconiosis
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materially contributed to Mr. Schultz’s death. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order on August 11, 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’
Compensation Commissioner, 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.” The Occupational
Pneumoconiosis Board determined that occupational pneumoconiosis was not a material
contributing factor in Mr. Schultz’s death. Mrs. Schultz failed to submit sufficient evidence to
refute the Board’s opinion. Dr. Oesterling opined that the lack of significant structural damage in
the lungs due to coal dust precludes coal dust as a significant factor in Mr. Schultz’s death. He felt
that Mr. Schultz’s smoking history caused the changes in his lungs that resulted in his death. Dr.
Werntz opined that Mr. Schultz’s cancer risk was increased by his smoking history and silica
exposure. He noted that without the silica exposure, Mr. Schultz may not have developed lung
cancer. However, the Occupational Pneumoconiosis testified that there is insufficient evidence to
attribute small cell cancer to silica exposure.
Affirmed.
ISSUED: February 1, 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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