Mary Karickhoff, widow of Dale Karickhoff v. Beth Energy Mines, Inc. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
MARY KARICKHOFF, WIDOW OF DALE KARICKHOFF,
FILED
Claimant Below, Petitioner December 11, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-1036 (BOR Appeal No. 2054222) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 910071309)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent
and
BETH ENERGY MINES, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Mary Karickhoff, widow of Dale Karickhoff, by Counsel J. Thomas Greene Jr.
appeals the decision of the West Virginia Workers’ Compensation Board of Review (“Board of
Review”). The West Virginia Office of Insurance Commissioner, by Counsel Karin L. Weingart,
filed a timely response.
The issue on appeal is dependent’s benefits. The claims administrator denied a request for
dependent’s benefits on September 14, 2017. The Workers’ Compensation Office of Judges
(“Office of Judges”) affirmed the decision in its April 12, 2019, Order. The Order was affirmed
by the Board of Review on October 18, 2019.
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.
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Mr. Karickhoff was a coal miner for thirty-five years. He was first examined by the
Occupational Pneumoconiosis Board on May 13, 1986, and found to have 50% impairment due to
occupational pneumoconiosis. He was reexamined on July 25, 1987, and found to have 60%
impairment. Mr. Karickhoff was granted a 60% permanent partial disability award on August 17,
1989. Mr. Karickhoff was granted a permanent total disability award on October 19, 1998.
Treatment notes from Monongalia General Hospital indicate Mr. Karickhoff was treated
between August 4, 2005, and September 13, 2016, for chest pain, shortness of breath, hypertension,
coronary artery disease, diabetes, chronic obstructive pulmonary disease, hyperlipidemia, black
lung, and asbestos exposure. On April 7, 2008, Mr. Karickhoff was admitted to United Hospital
Center for a blood transfusion, echocardiogram, and an esophagogastroduodenoscopy for a
gastrointestinal bleed with anemia.
Treatment notes by Ronald Mudry, M.D., from October 21, 2010, through December 16,
2014, indicate Mr. Karickhoff was treated for chronic obstructive pulmonary disease with
significant small airway disease, left lower lobe pleural thickening, history of coal and asbestos
exposure, coronary artery disease, occupational pneumoconiosis, and obstructive sleep apnea. An
April 1, 2011, chest x-ray showed hyperinflation consistent with chronic obstructive pulmonary
disease. Dr. Mundry completed a pulmonary function report on April 25, 2011, which showed a
severe obstructive lung defect.
A November 28, 2011, treatment note from Monongalia General Hospital indicates Mr.
Karickhoff was seen for chest pain. X-rays showed chronic obstructive pulmonary disease and a
six-millimeter pulmonary nodule on the left. A chest CT scan was performed on November 29,
2011, which showed mild emphysematous changes and ectasia of the thoracic aorta.
Discharge summaries from Monongalia General Hospital indicate Mr. Karickhoff was seen
on December 1, 2011, for coronary artery disease requiring angioplasty. He was discharged with
diagnoses of acute respiratory failure requiring intubation, hypotensive shock, acute
gastrointestinal bleed, acute myocardial infarction, acute chronic obstructive pulmonary disease
exacerbation, mild cardiomyopathy, and moderate aortic stenosis, insufficiency, and root dilation.
A January 12, 2013, chest x-ray showed a stable granuloma in the left lung. A chest CT scan
showed endotracheal and nasal tubes and a post-inflammatory granuloma. An August 27, 2013,
cardio stress test showed a prior myocardial infarction.
Mr. Karickhoff was treated at Monongalia General Hospital Emergency Department on
March 2, 2014, for acute exacerbation of chronic obstructive pulmonary disease, chest pain, and
coronary artery disease. A CTA of the cardiac structure was performed on March 7, 2014, and
showed moderate calcified atherosclerotic disease of the aortic valve. There was mucous plugging
in the lower lobe bronchi, mild scarring in the lung fields, and nonflow limiting dissection of the
right iliac artery. A March 8, 2014, chest x-ray showed no acute cardiopulmonary process and
chronic lung changes.
On March 11, 2014, Mr. Karickhoff was discharged from a Monongalia General Hospital
with diagnoses of severe aortic stenosis, acute on chronic respiratory failure, severe chronic
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obstructive pulmonary disease without exacerbation, acute on chronic congestive heart failure,
diabetes, and hypomagnesemia. A transesophageal echo showed severe symptomatic aortic
stenosis on April 2, 2014.
A September 15, 2016, chest x-ray showed atelectasis or infiltrate in the left lower lung.
On September 18, 2016, Mr. Karickhoff was admitted to Monongalia General Hospital. He went
into respiratory arrest and was intubated. Mrs. Karickhoff then went into bradyarrhythmia and
passed away. A chest x-ray showed interval development of alveolar edema pattern consistent with
acute heart failure, persistent left base consolidation and a small left pleural effusion with no
pneumothorax. Mr. Karickhoff’s Death Certificate lists the cause of death as acute respiratory
failure, cardiogenic shock, and renal failure.
On July 20, 2017, the Occupational Pneumoconiosis Board found that occupational
pneumoconiosis was not a material, contributing factor in Mr. Karickhoff’s death. It was noted
that x-rays and CT scans showed moderate emphysema. The Board found insufficient pulmonary
parenchymal or pleural disease to confirm a diagnosis of occupational pneumoconiosis. The claims
administrator denied a request for dependent’s benefits on September 14, 2017.
The Occupational Pneumoconiosis Board testified in a hearing before the Office of Judges
on March 6, 2019. John Willis, M.D., testified on behalf of the Board that Mr. Karickhoff’s chest
CT scans mostly showed moderate emphysema. There were no pleural or parenchymal changes to
make a diagnosis of occupational pneumoconiosis. Dr. Willis stated that he disagreed with the
Board’s 1986, 1989, and 1994 x-ray interpretations because CT scans are more reliable. Jack
Kinder, M.D., testified on behalf of the Board that Mr. Karickhoff had a thirty-five-year history of
occupational exposure. He also had a thirty-five to forty-year smoking history. Dr. Kinder opined
that Mr. Karickhoff suffered from pulmonary impairment but also had severe aortic stenosis and a
cardiac history of pulmonary disease. Dr. Kinder opined that Mr. Karickhoff’s death was primarily
cardiac in nature. Though pulmonary impairment can contribute to cardiac deaths, there was no
evidence of occupational pneumoconiosis in this case. Mallinath Kayi, M.D., also of the
Occupational Pneumoconiosis Board, concurred.
The Office of Judges affirmed the claims administrator’s denial of dependent’s benefits in
its April 12, 2019, Order. It found that Mr. Karickhoff was first examined by the Occupational
Pneumoconiosis Board in 1986 and found to have 50% impairment attributable to occupational
pneumoconiosis. In 1987, the Board found 60% impairment. Mr. Karickhoff was granted a
permanent total disability award in 1998. The Office of Judges found that the Death Certificate
lists the cause of death as acute respiratory failure and cardiogenic shock. The Occupational
Pneumoconiosis Board found on July 20, 2017, that occupational pneumoconiosis was not a
material contributing factor in Mr. Karickhoff’s death. It elaborated in a March 6, 2019, hearing
that chest CT scans showed moderate emphysema. There were no pleural or parenchymal changes
to diagnose occupational pneumoconiosis. Dr. Willis opined that the prior findings of the
Occupational Pneumoconiosis Board were incorrect. Those findings were based on x-rays, and Dr.
Willis stated that CT scans are more reliable. The Office of Judges concluded that the Occupational
Pneumoconiosis Board’s findings were not clearly wrong and affirmed the claims administrator’s
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rejection of the claim. The Board of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its Order on October 18, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Pursuant to West Virginia Code § 23-4-6a, “the Office of Judges
shall affirm the decision following hearing unless the findings of the Board are clearly wrong in
view of the reliable, probative, and substantial evidence on the whole record.” Mrs. Karickhoff has
failed to show that the Board’s decision was clearly wrong.
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 11, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
DISSENTING:
Justice Margaret L. Workman
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