Court: Cigarettes, not black lung, likely to blame for man's death

By Nathan Bass | Sep 25, 2013

CHARLESTON – The state high court recently agreed that occupational pneumoconiosis was not the cause of death of a West Virginia man and, resultantly, the widow of the former Cannelton Industries worker will not receive dependent's benefits.

The state Supreme Court issued a memorandum decision affirming the decision of the West Virginia Workers’ Compensation Board of Review on Sept. 10. Justice Menis E. Ketchum was the lone dissenting vote.

Harry G. Frye retired from Cannelton Industries and subsequently filed a claim related to his alleged occupational pneumoconiosis. On Dec. 12, 1998, the Occupational Pneumoconiosis Board found no more than five percent pulmonary functional impairment due to occupational pneumoconiosis in Frye’s living claim. Frye died on March 4, 2008, and his death certificate listed cell carcinoma of the lung as his primary cause of death.

Brenda Frye, Harry Frye’s widow, filed an application for dependent’s benefits in 2009 and this application was denied after the claims administrator found that occupational pneumoconiosis did not cause nor materially contribute to her husband’s death.

In the subsequent administrative appeals process, Brenda Frye testified that she believed occupational pneumoconiosis was a material factor in her husband’s death but she also indicated that her husband had been a smoker “for at least twenty years of their forty-seven year marriage,” according to the opinion.

The Occupational Pneumoconiosis Board noted that Frye’s x-rays from Dec. 22, 1998; May 16, 1995; and Dec. 16, 1981 all showed only minimal degree of nodular fibrosis consistent with occupational pneumoconiosis. The Office of Judges agreed that occupational pneumoconiosis was not a material contributing factor in Frye’s death.

“In its decision, the Office of Judges noted that the Occupational Pneumoconiosis Board concluded that occupational pneumoconiosis was not a material contributing factor in the Mr. Frye’s death,” the court wrote.

“Further, the Office of Judges noted that the autopsy showed squamous cell carcinoma, typically caused by cigarette smoking, and no evidence that Mr. Frye had occupational pneumoconiosis. The Board of Review agreed with the findings and conclusions of the Office of Judges in its Order of November 7, 2011. We agree with the reasoning and conclusions of the Board of Review.”

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