DONNIE HOLCOMB, WIDOW OF JAMES E. HOLCOMB, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMMISSIONER Commissioner Below, Respondent, and OILTANKING HOUSTON, INC Employer Below, Respondent
Appeal No. 2051964, (Claim No. 2015010289)
Donnie Holcomb, widow of James E. Holcomb, by Robert L.
Stultz, her attorney, appeals the decision of the West
Virginia Workers' Compensation Board of Review. The West
Virginia Office of Insurance Commissioner, by Anna L.
Faulkner, its attorney, filed a timely
issue on appeal is dependent's benefits. On April 21,
2015, the claims administrator denied Ms. Holcomb's claim
for dependent's benefits. The Office of Judges affirmed
the claims administrator in its May 3, 2017, Order. The Order
was affirmed by the Board of Review on September 15, 2017.
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
Holcomb, the decedent, worked as a coal miner for twenty-nine
years. He stopped working in March of 1998 due to breathing
problems. On August 10, 1998, Manu Patel, M.D., diagnosed
simple pneumoconiosis with p/p opacities of 1/0 profusion in
all zones and mild chronic obstructive pulmonary disease
based on chest x-rays. On August 24, 1998, D. L. Rasmussen,
M.D., performed an independent medical evaluation of Mr.
Holcomb. He noted that Mr. Holcomb smoked one pack of
cigarettes per day from 1967 to 1995. Spirometric studies
revealed severe, irreversible obstructive ventilatory
impairment. Mr. Holcomb's maximum breathing capacity was
markedly reduced. However, the total lung capacity was
normal. Dr. Rasmussen found that it was medically reasonable
to conclude that Mr. Holcomb had coal workers'
pneumoconiosis due to his work in the mines. The pulmonary
impairment was due to his cigarette smoking and the exposure
to coal dust. The exposure to coal dust was a contributing
factor in the disabling respiratory insufficiency.
Holcomb submitted a claim for workers' compensation
benefits, for which no award was granted because the
Occupational Pneumoconiosis Board was not able to make a
finding of occupational pneumoconiosis. However, the Office
of Judges reversed the Division's Order granting no award
and granted a 30% permanent partial disability award to the
decedent on September 9, 1999.
Holcomb passed away on September 4, 2014. His death
certificate signed by R. M. Mace, M.D., lists the immediate
cause of death as coal workers' pneumoconiosis. On
September 22, 2014, Ms. Holcomb filed this claim for
decedent's benefits stating that Mr. Holcomb worked in
the mines for twenty-nine years, that he was disabled at the
age of forty-nine due to his breathing condition, that he had
been on oxygen for sixteen years, and that he had been bed
ridden for four years prior to his death.
Occupational Pneumoconiosis Board issued its findings on
March 10, 2015. It found that occupational pneumoconiosis was
not a material factor in the death of Mr. Holcomb. The x-rays
reviewed by the Board showed insufficient pulmonary
parenchymal or pleural disease to establish a diagnosis of
occupational pneumoconiosis. Based on the Board's
findings, the claims administrator denied the claim on April
letter dated May 4, 2016, Dr. Mace stated that it was his
opinion that Mr. Holcomb had occupational pneumoconiosis as
the result of his twenty-nine year history of working as a
coal miner. In his opinion, Mr. Holcomb's physical
condition was severely compromised and became progressively
worse as a result of the occupational pneumoconiosis. The
respiratory compromise became so severe that it eventually
played a role in Mr. Holcomb's death. The inability to
perform normal activities of daily living contributed to the
inability to properly clear secretions from his lungs. In Dr.
Mace's opinion, Mr. Holcomb died as the result of
complications resulting from the occupational pneumoconiosis.
In a separate letter dated May 4, 2016, Vonda McElwain, D.O.,
opined that Mr. Holcomb had a history of pneumoconiosis or
black lung which contributed to his death.
Scattaregia, M.D., performed a medical records review and
prepared a report on May 27, 2016, in which he opined that
Mr. Holcomb's occupational pneumoconiosis played a
material role in his death. Dr. Scattaregia's opinion was
based on the x-ray diagnosis, the severe pulmonary problems,
and the active care and treatment for pneumoconiosis that Mr.
October 27, 2016, Gregory Fino, M.D., prepared a report after
a medical records review. In his opinion, Mr. Holcomb died of
end-stage chronic obstructive pulmonary disease. A chest
x-ray from August 25, 2014, showed "significant
interstitial bilateral abnormalities" that were not seen
in the 2010 chest x-ray. Therefore, he did not believe they
could be the result of coal dust inhalation. He found no
evidence of occupational pneumoconiosis. In his opinion, coal
dust was not a material contributing factor in Mr.
Holcomb's death. Cigarette smoking-induced lung disease
caused the death of Mr. Holcomb.
hearing was held before the Office of Judges on April 5,
2017. Johnsey Leef, Jr., M.D., Jack Kinder, M.D., and
Mallinath Kayi, M.D., of the Occupational Pneumoconiosis
Board, testified. Dr. Leef diagnosed chronic obstructive
pulmonary disease. He could not make a diagnosis of
occupational pneumoconiosis. Dr. Kinder agreed with the
opinion of Dr. Leef. In Dr. Kinder's opinion, the cause
of death was not due to pneumoconiosis and it did not
contribute to the death. Dr. Kinder noted Mr. Holcomb was
hospitalized and awaiting discharge at the time of his death.
He was initially admitted for shortness of breath, chronic
obstructive pulmonary disease, and gastrointestinal bleeding.
Dr. Kinder believed that the breathing problems Mr. Holcomb
had in the final days of his life were likely due to the
amount of blood thinner he was taking causing severe blood
thinness. Moreover, the medical records were not helpful in
identifying a cause of death. There was not enough
information, either pathological or from a CAT scan, to make
a finding that the occupational pneumoconiosis was fatal. In
Dr. Kinder's opinion, it was very hard to determine a
cause of death because it was difficult to draw conclusions
as to what happened at the time of death. Dr. Kayi agreed
with the opinions of Drs. Leef and Kinder.
Office of Judges affirmed the claims administrator's
denial of benefits in its May 3, 2017, Order. It noted the
claims administrator denied the claim for dependent's
benefits based on the findings of the Occupational
Pneumoconiosis Board. It reviewed all of the medical evidence
and determined that it was more likely than not that the
occupational pneumoconiosis did not contribute in a material
way to the death of Mr. Holcomb. On September 15, 2017, the
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its Order.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review.
Deference should be given to the opinion of the Occupational
Pneumoconiosis Board. Fenton Art Glass Co. v. W.Va.
Office of Ins. Comm'r, 222 W.Va. 420, 664 S.E.2d 761
(2008). The Occupational Pneumoconiosis Board determined that
occupational pneumoconiosis was not a material cause of Mr.
Holcomb's death. The members of the Occupational
Pneumoconiosis Board agreed that Mr. Holcomb had chronic
obstructive pulmonary disease. It was unable to make a
diagnosis of occupational pneumoconiosis. Based on the
limited medical records, Mr. Holcomb did not appear to be in
respiratory distress in the hours before he died. It is