Justices, in close vote, deny dependent's benefits to widow

By Nathan Bass | Feb 27, 2013

Davis


CHARLESTON – On a 3-2 vote, the state Supreme Court affirmed a Workers’ Compensation Board of Review decision denying dependent’s benefits to the widow of a man who had received a permanent partial disability award for occupational pneumoconiosis during his life.

The majority was composed of Justices Robin Jean Davis, Menis E. Ketchum and Allen H. Loughry II. Chief Justice Brent D. Benjamin and Justice Margaret L. Workman made up the dissent.

“Nolan Queen passed away on March 23, 2007. Mr. Queen received a permanent partial disability award for occupational pneumoconiosis during his life. His death certificate listed the immediate cause of death as chronic obstructive pulmonary disease with asbestosis and cigarette smoking as underlying causes, and other significant conditions were heart failure and a trial fibrillation,” the opinion states.

“On May 21, 2008, the claims administrator denied Ms. Queen’s request for dependent’s benefits because occupational pneumoconiosis was not a contributing factor in the death of the decedent, relying on the Occupational Pneumoconiosis Board’s findings of April 1, 2008.

"The Office of Judges affirmed the claims administrator’s order, finding that 'the preponderance of the evidence established that occupational pneumoconiosis did not cause, nor materially contribute to the decedent’s death.'”

Ms. Queen disagreed, asserting that the reports of Drs. Gaziano and Rasmussen established that occupational pneumoconiosis was a material contributing factor in her husband’s death.

The Occupational Pneumoconiosis Board, noting that both doctors said that Mr. Queen’s respiratory disease was caused in part by his smoking, found that occupational pneumoconiosis was not a material contributing factor in Queen’s death.

“The Office of Judges noted that the Occupational Pneumoconiosis Board carefully considered all the evidence, and that the decedent had a significant smoking history. It further pointed out that Drs. Gaziano and Rasmussen had attributed pulmonary impairment to the significant smoking history,” the opinion states.

“The Office of Judges concluded that the claims administrator correctly rejected Ms. Queen’s request for dependent’s benefits. The Board of Review reached the same reasoned conclusions in its decision of May 5, 2011.

“We agree with the reasoning and conclusions of the Board of Review. 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.”

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