VALERIA WYCO, WIDOW OF STANLEY WYCO, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and GREEN CONSTRUCTION COMPANY, Employer Below, Respondent
Appeal No. 2052002) (Claim No. 2015012489)
Valeria Wyco, widow of Stanley Wyco, by Reginald D. Henry,
her attorney, appeals the decision of the West Virginia
Workers' Compensation Board of Review. The West Virginia
Office of Insurance Commissioner, by B. Allen Campbell, its
attorney, filed a timely response.
issue on appeal is whether Mrs. Wyco is entitled to
dependent's benefits. The claims administrator denied the
request for dependent's benefits on June 17, 2015. The
Office of Judges affirmed the decision in its May 25, 2017,
Order. The Order was affirmed by the Board of Review on
October 2, 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
Wyco worked for Green Construction Company as a driller and
blaster prior to his death. In June of 1989, a treatment note
by Donald Rasmussen, M.D., indicates Mr. Wyco had moderately
severe, partially reversible obstructive ventilator
impairment. On July 12, 1989, Dr. Rasmussen noted that Mr.
Wyco had a long history of silicon dioxide exposure. There
was x-ray evidence of pneumoconiosis and indicated that he
had occupationally induced silicosis. Jes Floreaca, M.D.,
stated in a treatment note on July 21, 1989, that Mr. Wyco
was totally and permanently disabled as a result of pulmonary
impairment caused by exposure to rock dust. In a hearing in
November of 1989, the Occupational Pneumoconiosis Board
testified that Mr. Wyco had total pulmonary function
impairment attributable to occupational pneumoconiosis. Mr.
Wyco was granted a permanent total disability award for
occupational pneumoconiosis on February 6, 1990.
notes from Access Health Rural Acres indicate Mr. Wyco was
treated by Shrikant Bembalkar, M.D., on October 16, 2007. Dr.
Bembalkar diagnosed coal workers' pneumoconiosis, chronic
obstructive pulmonary disease, and hypoxia and noted that he
was on supplemental home oxygen. On July 20, 2014, the
diagnoses were listed as silicosis and occupational
pneumoconiosis due to railroad and construction work, chronic
sinusitis, asthmatic bronchitis, chronic obstructive
pulmonary disease, hypoxia, resection of colon cancer, and
diabetes, among others.
November 12, 2008, Mr. Wyco underwent bilateral femoral
artery cut downs, aortogram, and endovascular abdominal
aortic aneurysm repair. Treatment notes by James Lohan, M.D.,
indicate Mr. Wyco was diagnosed with stage II transverse
colon cancer. He was treated with surgical excision and on
February 14, 2014, he was doing well and did not require
Wyco was admitted to Charleston Area Medical Center for
atrial fibrillation on April 25, 2012. On April 29, 2012, he
underwent a myocardial perfusion scan which showed an area of
ischemia with a possible small infarction. The left ventricle
was moderately reduced and the right was enlarged and
thickened. A May 1, 2012, treatment note by John Goad, M.D.,
indicates Mr. Wyco had a left heart catherization, coronary
angiography, and left ventricular pressures. The findings
were severe left anterior descending artery disease with
collaterals filling the distal vessel, mild coronary artery
disease, decreased left ventricle function, renal
insufficiency, and atrial fibrillation. A treatment note by
Stacy Groom, Nurse Practitioner, dated February 6, 2013,
indicates Mr. Wyco had an echocardiogram that showed
cardiomyopathy, coronary artery disease, hypertension, and
Porterfield, M.D., stated in a July 15, 2013, consultation
report that Mr. Wyco had known occupational pneumoconiosis
and silicosis due to working on the railroad. He smoked for
thirty pack years and stopped twenty years prior. Mr. Wyco
was treated for sudden onset of coughing up blood. A CT scan
showed an opacity, which was likely scarring. A bronchoscopy
was scheduled. A July 23, 2013, CT report indicates Mr. Wyco
had emphysema, enlargement of the liver with steatosis, and
chronic obstructive pulmonary disease.
July 28, 2013, through August 2, 2013, Mr. Wyco was
hospitalized at Charleston Area Medical Center for coughing
up blood. Tamajiro Takubo, M.D., performed a fiber optic
bronchoscopy the following day in which he found an
endobronchial lesion and noted the blood was coming from the
left upper lobe. The pathology report showed an aspirated
foreign body and fibrous tissue with acute inflammation. Dr.
Takubo performed a second bronchoscopy on August 2, 2013. He
found multiple, thick old blood clots in the right lung and
mild active oozing in the left upper lobe.
Bembalkar's August 8, 2013, treatment note indicates Mr.
Wyco was diagnosed with silicosis and occupational
pneumoconiosis due to railroad work, asthmatic bronchitis,
chronic obstructive pulmonary disease, recurrent coughing up
blood, hypoxia, and chronic respiratory insufficiency.
Treatment notes from Pulmonary Associates of Charleston
indicate Mr. Wyco reported coughing, spitting up blood,
shortness of breath, and occasional wheezing on August 8,
2013. He was diagnosed with dyspnea, very severe chronic
obstructive pulmonary disease, and hemoptysis. A CT scan was
performed and showed multiple areas of concern. An open lung
biopsy was scheduled to check for cancer and showed no
September 12, 2013, a chest CT scan showed multiple new areas
of subpleural nodularity and emphysema. It was questionable
whether Mr. Wyco had a metastatic disease or an infection. On
January 16, 2014, a CT scan showed a very small area of
infiltrate, an unchanged one centimeter density in the right
upper lobe, emphysema, and hepatic steatosis. A treatment
note by Glenn Ridenour, M.D., that same day indicates Mr.
Wyco was stable and off of anti-mycobacterial therapy. He had
no progressive symptomology and no progressive CT scan
findings. On July 17, 2014, Dr. Ridenour indicated Mr. Wyco
underwent another CT scan which showed irregular soft tissue
density in the right upper lobe that had been present since
July of 2013. On August 22, 2014, chest x-ray showed a stable
irregular opacity in the right upper lobe and moderate
changes from emphysema.
Wyco was admitted to Charleston Area Medical Center on August
26, 2014, for colon cancer surgery. A chest x-ray taken two
days later showed a partially collapsed left lung. In a
September 4, 2014, consultation report, Robby Keith, M.D.,
noted that Mr. Wyco was currently sedated and on a
ventilator. He diagnosed respiratory failure, chronic
obstructive pulmonary disease, diabetes, and acute renal
failure. A chest x-ray showed unchanged atelectasis. Khan
Shabih, M.D., performed a nephrology consultation on
September 6, 2014, in which he diagnosed acute kidney injury
and recommended dialysis.
September 7, 2014, consultation report, Chafik Assal, M.D.,
was asked to review sinus bradycardia. He recommended a
cardiology evaluation, management of shock, and treatment for
suspected sepsis. A note by James Pettit, M.D., indicated Mr.
Wyco was in suspected shock due to sepsis. A chest x-ray
showed interstitial opacities and the atelectasis was
improving. A chest x-ray taken on September 9, 2014, showed
persistent air space disease in the left lung base and a
small amount of pleural fluid on the left. On September 15,
2014, a chest ...