WEST VIRGINIA RECORD

CHARLESTON – The widow of a Lindy Coal employee who died of lung cancer was properly denied dependent benefits even though her husband had been awarded permanent partial disability for occupational pneumoconiosis prior to his death, according to the opinion of the state Supreme Court.

The court released the opinion on June 12. The vote of the five-justice court was unanimous.

Wallace Richards was exposed to the hazards of occupational pneumoconiosis during his over 20-year career with Lindy Coal. Resultantly, he received a 20 percent permanent partial disability award as a result of his exposure.

Richards died on Aug. 18, 2009, and the death certificate attributed his death to lung cancer resulting from occupation pneumoconiosis although no autopsy was performed, the opinion says.

Richards’ widow, Nyoka Richards, applied for dependent benefits based on her husband’s occupational pneumoconiosis but was denied by the claims administrator. The Occupational Pneumoconiosis Board conducted a hearing on Nyoka Richards’s claim on Nov. 3, 2009, and it determined that there was insufficient evidence to determine that occupational pneumoconiosis materially contributed to her husband’s death.

The Occupational Pneumoconiosis Board based its decision on the testimony of Dr. Kinder, who opined that Wallace Richards died from lung cancer but there was no medical evidence linking the lung cancer to his occupational pneumoconiosis. The Workers’ Compensation Board of Judges and, subsequently, the Board of Review, affirmed the decision.

Nyoka Richards appealed to the state Supreme Court.

“In cases where a decedent had contracted occupational pneumoconiosis and then died, the claims administrator is required to provide dependent benefits to the decedent’s widow, under West Virginia Code § 23-4-10(b)(1) (2010), in an amount equal to the amount that would have been paid under an award of total disability, if the claimant can show that the occupational pneumoconiosis contributed in any material degree to the decedent’s death,” the court wrote.

“Although it is clear from Mr. Richards’s prior permanent partial disability awards that he had contracted occupational pneumoconiosis, the Office of Judges found that Mrs. Richards’s claim for dependent benefits cannot be established, because there is no medical evidence in this case that demonstrates that the pneumoconiosis contributed in any material way to Mr. Richards’s death. The Occupational Pneumoconiosis Board could not find any evidence to link Mr. Richards’s compensable condition to his death.

“The Board of Review did not err in affirming the December 9, 2010, Order of the Office of Judges because Mrs. Richards’s claim for dependent benefits does not meet the standard set out in Bradford v. Workers’ Comp. Comm’r, 185 W. Va. 434, 442, 408 S.E.2d 13, 21 (W. Va. 1991).

“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.”