Wanda Goodman, widow of William Goodman v. Bailey Energy, Inc.

FILED
STATE OF WEST VIRGINIA February 19, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
WANDA GOODMAN, WIDOW OF WILLIAM GOODMAN,
Claimant Below, Petitioner
vs.) No. 19-1151 (BOR Appeal No. 2054281)
(Claim No. 930066205)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent
and
BAILEY ENERGY, INC.,
LUCKY M, INC., AND
TRINITY MINING, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Wanda Goodman, widow of William Goodman, by Counsel Gregory S. Prudich,
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 Ms.
Goodman’s request for dependent’s benefits on December 22, 2015. The Workers’ Compensation
Office of Judges (“Office of Judges”) affirmed the decision in its May 29, 2019, Order. The Order
was affirmed by the Board of Review on November 22, 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
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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. Goodman was a coal miner for thirty-four years. On October 13, 1994, he was
evaluated by the Occupational Pneumoconiosis Board, which found that he had 40% impairment
due to occupational pneumoconiosis. The Occupational Pneumoconiosis Board again examined
Mr. Goodman on December 20, 1998, and found that he had no more than 40% impairment due
to occupational pneumoconiosis. On December 19, 1999, the claims administrator found Mr.
Goodman was fully compensated by a 40% permanent partial disability award.
The Occupational Pneumoconiosis Board testified in an April 19, 2000, hearing before the
Office of Judges. Johnsey Leef, M.D., testified on behalf of the Board that he reviewed x-rays and
was unable to diagnose occupational pneumoconiosis. He found evidence of chronic obstructive
pulmonary disease. James Walker, M.D., concurred with Dr. Leef’s testimony. He testified that
pulmonary function studies showed severe abnormalities, and Mr. Goodman was totally disabled.
Dr. Walker opined that the 40% impairment found in 1994 was due to occupational
pneumoconiosis but further progression was the result of Mr. Goodman’s severe chronic
obstructive pulmonary disease. Bradley Henry, M.D., also of the Occupational Pneumoconiosis
Board, concurred.
The Office of Judges reversed a claims administrator’s decision and granted Mr. Goodman
a permanent total disability award on August 18, 2003. Between 2008 and 2014, the claims
administrator authorized various treatments for occupational pneumoconiosis, including a
nebulizer kit, lifetime oxygen services, and pulmonary rehabilitation. On March 20, 2015, Mr.
Goodman passed away. The Death Certificate was completed on April 1, 2015, and listed the cause
of death as end stage chronic obstructive pulmonary disease.
On November 5, 2015, the Occupational Pneumoconiosis Board determined that
occupational pneumoconiosis was not a material contributing factor in Mr. Goodman’s death. The
claims administrator denied Mrs. Goodman’s request for dependent’s benefits on December 22,
2015.
Bruce Guberman, M.D., performed a record review on March 17, 2017, in which he noted
that the cause of death listed on the death certificate was end stage chronic obstructive pulmonary
disease. Mr. Goodman was awarded a 40% permanent partial disability award and later, a
permanent total disability award. Mr. Goodman worked in the mines for thirty-four years. He was
a smoker for fourteen years but quit in 1997. Dr. Guberman noted that Mr. Goodman was
hospitalized off and on for chronic obstructive pulmonary disease exacerbations and episodes of
congestive heart failure. Diagnostic imaging over the years showed progression of chronic
obstructive pulmonary disease, pulmonary hypertension, and fibrosis. Dr. Guberman found that
the only two causes for Mr. Goodman’s pulmonary disease were his history of smoking and
twenty-eight years of coal dust exposure. Dr. Guberman opined that the significant coal dust
exposure and the previous diagnosis of occupational pneumoconiosis indicate occupational
pneumoconiosis significantly contributed to Mr. Goodman’s death. He further opined that the
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progressive decline of Mr. Goodman’s lung function was substantially related to occupational
pneumoconiosis.
The Occupational Pneumoconiosis Board testified in a hearing before the Office of Judges
on April 17, 2019. Jack Kinder, M.D., testified on behalf of the Board that at the time Mr.
Goodman was found to have 40% impairment due to occupational pneumoconiosis in 1994, the
diagnosis was made under the presumptive statute. Dr. Kinder stated that the x-rays were negative
at that time. He also stated that when the Board reviews a case for a second time, the presumption
starts over, and the Board must look at the entire case again. Dr. Kinder testified that when the
Board reviewed Mr. Goodman’s case again, it found no radiographic or pathologic evidence of
occupational pneumoconiosis. Dr. Kinder stated that Mr. Goodman’s medical records indicate
numerous diagnoses of chronic obstructive pulmonary disease. He also noted that Mr. Goodman
had arterial fibrillation of the heart. Dr. Kinder opined that Mr. Goodman’s primary cause of death
was chronic obstructive pulmonary disease. He did not believe occupational pneumoconiosis
played a material, contributing role in Mr. Goodman’s death. Dr. Kinder noted that Mr. Goodman
had a smoking history of anywhere from a quarter of a pack per day for four years to a pack a day
for fifteen to twenty years. He found this sufficient to cause chronic obstructive pulmonary disease.
Drs. Henry and Leef concurred.
The Office of Judges affirmed the claims administrator’s denial of dependent’s benefits on
May 29, 2019. 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 (2019)
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.” After review of the extensive medical
record, the Office of Judges concluded that the findings of the Occupational Pneumoconiosis
Board were not clearly wrong. There was no x-ray evidence of occupational pneumoconiosis.
The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on November 22, 2019. The Board’s decision is correct and should
be affirmed. Though Mr. Goodman was granted a 40% permanent partial disability award, that
decision was made under the presumptive statute, which we no longer use. There was no x-ray
evidence of occupational pneumoconiosis to support the award. When the Occupational
Pneumoconiosis Board reviewed Mr. Goodman’s case in 2015, it found insufficient evidence to
support a diagnosis of occupational pneumoconiosis. Further, Dr. Kinder testified on behalf of the
Board that while chronic obstructive pulmonary disease caused Mr. Goodman’s death, he did not
believe that occupational exposure played a role in Mr. Goodman’s death. Therefore, the Office
of Judges was correct to find that occupational pneumoconiosis was not a material, contributing
factor in Mr. Goodman’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
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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: February 19, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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