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Wyco v. West Virginia Office of Insurance Commissioner

Supreme Court of West Virginia

May 7, 2018


          (BOR Appeal No. 2052002) (Claim No. 2015012489)


         Petitioner 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.

         The 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.

         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. 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.

         Treatment 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.

         On 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 chemotherapy.

         Mr. 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 diabetes.

         Charles 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.

         From 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.

         Dr. 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 malignant cells.

         On 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.

         Mr. 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.

         In a 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 ...

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