ELIZABETH FOSTER, WIDOW OF VIRGIL L. FOSTER, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent AND GLASSWARE ACQUISITION, INC., Employer Below, Respondent
Appeal No. 2050940, Claim No. 2014007355
Elizabeth Foster, widow of Virgil L. Foster by Robert L.
Stultz, her attorney, appeals the decision of the West
Virginia Workers' Compensation Board of Review. West
Virginia Office of Insurance Commissioner by Noah A. Barnes,
its attorney, filed a timely response.
appeal arises from the Board of Review's Final Order
dated March 28, 2016, in which the Board affirmed the October
29, 2015, Order of the Workers' Compensation Office of
Judges. In its Order, the Office of Judges affirmed the
claims administrator's October 17, 2014, decision denying
Mrs. Foster's request for dependent's benefits. The
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration.
Court has considered the parties' briefs and the record
on appeal. 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
L. Foster, the deceased, worked in various glass plants for
forty-six years. He stopped working in August of 2002. Mr.
Foster passed away on February 4, 2013. Elizabeth Foster, his
widow, submitted a claim for dependent's benefits on
September 11, 2013. On October 17, 2014, the claims
administrator denied Mrs. Foster's request for
dependent's benefits based on the decision of the
Occupational Pneumoconiosis Board.
Foster was seen by Ronald Mudry, M.D., on May 2, 2012, for a
persistent cough and shortness of breath. Dr. Mudry noted he
had a history of occupational inhalation. Dr. Mudry diagnosed
asbestosis, cough, hypoxemia, and chest pain. A May 9, 2012,
CT scan of the chest revealed diffuse interstitial thickening
and bronchiectatic changes, most prominent in the lung bases.
After the CT scan, Mr. Foster was seen by Dr. Mudry who noted
the symptoms began ten years ago. Dr. Mudry diagnosed
asbestosis, respiratory failure, and cough.
27, 2012, A. Sabbagh, M.D., performed an echocardiogram which
revealed inferior lateral moderate hypokinesis, mild mitral
regurgitation, moderate to severe tricuspid regurgitation,
and trace to mild aortic insufficiency. Mr. Foster returned
to see Dr. Mudry for a pulmonary fibrosis reassessment on
August 8, 2012. Dr. Mudry changed his medication and
diagnosed chronic asbestosis, chronic respiratory failure,
chronic cough, and chronic hypoxemia. On November 7, 2012,
Dr. Mudry noted the asbestosis symptoms had been
incapacitating. The diagnoses continued to be chronic
asbestosis and chronic respiratory failure.
Foster returned to see Dr. Mudry on January 30, 2013, due to
increased symptoms. He reported severe shortness of breath
and constant, incapacitating symptoms. The diagnoses remained
the same. Dr. Mudry referred him for Hospice Care. St.
Joseph's Hospital records show the decedent passed away
due to cardiac arrest on February 4, 2013. The Certificate of
Death completed by Dr. Mudry on February 28, 2013 states that
Mr. Foster died due to asbestosis.
August 26, 2014, the Occupational Pneumoconiosis Board
reviewed the medical evidence as well as the death
certificate. It noted that no death summary or autopsy report
was available. Additionally, no radiographs were available
for interpretation. The Occupational Pneumoconiosis Board
determined that occupational pneumoconiosis was not a
material contributing factor in Mr. Foster's death.
October 29, 2015, Order, the Office of Judges determined that
the Occupational Pneumoconiosis Board did not find evidence
of pleural plaque and concluded there was insufficient
evidence to diagnosis asbestosis. The Office of Judges noted
that Mr. Foster had a chronic lung disease but that the
Occupational Pneumoconiosis Board was unable to say his
occupational exposure was a material factor in his death as
they saw no evidence of asbestos disease. The Office of
Judges saw no evidence that would demonstrate the
Occupational Pneumoconiosis Board's decision was clearly
wrong and affirmed the claims administrator's October 17,
2014, denial of dependent's benefits.
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its Order on
March 28, 2016. After review, we agree with the Board of
Review. While there is evidence that Mr. Foster had a lung
condition, the Occupational Pneumoconiosis Board was not
willing to state he had asbestosis based upon the evidence
submitted. Therefore, the Occupational Pneumoconiosis Board
was not able to state that occupational pneumoconiosis was a
material contributing factor in Mr. Foster's death. The
Occupational Pneumoconiosis Board's analysis was
supported by medical evidence. The Office of Judges and Board
of Review relied on the findings and conclusions of the
Occupational Pneumoconiosis Board. The request for
dependent's benefits was properly denied.
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
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin J. Davis, Justice Margaret L. Workman, Justice Menis ...