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Lawless v. West Virginia Office of Insurance Commissioner

Supreme Court of West Virginia

December 19, 2017

WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and MET TRANSPORT, INC., Employer Below, Respondent

         BOR Appeal No. 2051789 (Claim No. 980008783)


         Petitioner Lois Lawless, widow of Phillip Lawless Jr., by Robert M. Williams, her attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. The West Virginia Office of the Insurance Commissioner, by Noah A. Barnes, its attorney, filed a timely response.

         The issue on appeal is whether Mrs. Lawless is entitled to dependent's benefits. The claims administrator rejected the claim on March 28, 2014. The Office of Judges affirmed the decision in its December 28, 2016, Order. The Order was affirmed by the Board of Review on June 8, 2017. The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration.

         This 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 Procedure.

         Mr. Lawless, a fire boss, worked in the coal mines for almost twenty years. On March 22, 1988, the Occupational Pneumoconiosis Board issued findings. Mr. Lawless reported shortness of breath for four to five years. Chest x-rays showed fine irregular nodular fibrosis in a moderate amount, which was the result of occupational pneumoconiosis. Pulmonary function studies showed an FVC of 125% predicted, an FEV1 of 130% predicted, and an FEV1/FEC ration of eighty. The Occupational Pneumoconiosis Board found no permanent impairment due to Occupational Pneumoconiosis.

         The Occupational Pneumoconiosis Board next issued findings on October 8, 1998. At that time, Mr. Lawless had nineteen years of exposure. He was a nonsmoker. X-rays were interpreted as showing no change from the 1988 x-rays. Pulmonary function studies showed an FVC of 118% of predicted, and FEV1 of 125%, and an FEV1/FVC ratio of seventy-nine. The Occupational Pneumoconiosis Board found 5% impairment due to occupational pneumoconiosis.

         Treatment notes from St. Luke's Hospital dated November 19, 1999, indicate Mr. Lawless was admitted for dizziness, inability to walk, and occasional shortness of breath. The initial diagnosis was idiopathic syncope, chronic obstructive pulmonary disease, hypertension, prostate carcinoma, questionable chest pain, and a urinary tract infection. On February 2, 2010, Mr. Lawless was again admitted to the hospital. Treatment notes from Bluefield Regional Hospital indicate he was admitted for dizziness and fainting. He was diagnosed with low blood pressure likely secondary to midodrine. An echocardiogram was normal. A chest CT revealed a small pulmonary emboli. Mr. Lawless was transferred to Roanoke Memorial Hospital on February 7, 2010. The discharge summary lists the diagnosis as idiopathic severe symptomatic orthostatic hypotension.

         On February 22, 2012, Mr. Lawless was admitted to Bluefield Regional Hospital for severe syncope. He was again diagnosed with significant orthostatic hypotension. The discharge summary indicated Mr. Lawless had a history of Shy-Drager syndrome, which caused urinary retention.

         Treatment notes by Todd Smith, D.O., dated May 8, 2012, indicate Mr. Lawless had experienced weakness for the past five years in his arms, legs, hands, and feet. He also had symptoms of arthralgia, muscle atrophy, muscle tenderness and pain, numbness, tingling, and urinary bladder dysfunction. However, Mr. Lawless was not complaining of shortness of breath. He was diagnosed with high blood pressure, high cholesterol, rheumatoid arthritis, generalized weakness, and a frozen shoulder. On June 5, 2012, Dr. Smith again noted that Mr. Lawless reported no shortness of breath. He was diagnosed with Shy-Drager syndrome.

         Emergency department records from Princeton Community Hospital from May 16, 2012, indicate Mr. Lawless was treated for syncope. An MRI of Mr. Lawless's brain showed moderate central and cortical atrophy, bilateral mastoid air cell fluid consistent with bilateral mastoiditis, and chronic ischemic changes in the centrum semiovale. A chest x-ray showed mild chronic obstructive pulmonary disease. A chest x-ray taken on July 4, 2012, was unremarkable.

         Mr. Lawless was admitted to Princeton Community Hospital on July 5, 2012, for an altered mental status. He was diagnosed with a urinary tract infection, dehydration, altered mental status, thrombocytopenia, multisystem atrophy with autonomic failure, and Shy-Drager syndrome. On discharge, Mr. Lawless was more alert and conversive. He denied chest pain, shortness of breath, cough, or productive sputum.

         Mr. Lawless passed away on January 26, 2013. His death certificate lists the cause of death as cardiovascular arrest, chronic respiratory failure, and Shy-Drager syndrome. Antonio Dy, M.D., performed an autopsy. His February 20, 2013, report indicates he obtained samples from both lungs. He opined that the immediate cause of death was hemorrhagic bronchopneumonia. There was also "distributed carbon dusts of anthracotic pneumoconiosis with dramatic presence of dense scarring, hyalinized nodules with distributed dust in the sections of the lower lobe of the left lung. In addition, the sections of the peribronchial lymph nodes revealed prominent dust-laden microphages, hyalinized nodules, and extension of dust into the surrounding periodontal soft tissue."

         Dr. Dy wrote a letter to Mrs. Lawless on May 13, 2013, describing Mr. Lawless's autopsy slides. He stated that the lower lobe of the right lung had advanced fibrosis in the form of nodular hyalinized scarring due to pneumoconiosis, which is more commonly known as black lung, due to his extensive number of years working in a coal mine. The pneumoconiosis combined with pneumonia resulted in Mr. Lawless's death.

         After reviewing the medical records, the Occupational Pneumoconiosis Board determined that occupational pneumoconiosis was not a material contributing factor in Mr. Lawless's death on February 13, 2014. The claims administrator denied ...

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