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McClung v. West Virginia Office of Insurance Commissioner

Supreme Court of Appeals of West Virginia

September 13, 2019

TAMMY MCCLUNG, ROGER W. MCCLUNG (Deceased), Claimant Below, Petitioner
v.
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and CENTRAL APPALACHIAN COAL COMPANY, Employer Below, Respondent

          (BOR Appeal No. 2052900) (Claim No. 840069232)

          MEMORANDUM DECISION

         Petitioner Tammy McClung, by Counsel Robert Williams, appeals the decision of the West Virginia Workers' Compensation Board of Review ("Board of Review"). The West Virginia Office of the Insurance Commissioner, by Counsel Henry Bowen, filed a timely response.

         The issue on appeal is dependent's benefits. The claims administrator denied Ms. McClung's application for 104 weeks of dependent's benefits and fatal dependent's benefits on July 7, 2016. The Office of Judges reversed the decision in its April 10, 2018, Order, granted 104 weeks of dependent's benefits, held the claim compensable on a nonmedical basis, and referred the claim to the Occupational Pneumoconiosis Board to determine if occupational pneumoconiosis contributed to or hastened the decedent's death. The Order was reversed by the Board of Review on September 13, 2018, and the claims administrator's rejection was reinstated.

         The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration. 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. McClung, the decedent, was granted a permanent total disability award on June 8, 2005. Mr. McClung also received Social Security disability benefits and his daughter, Tammy McClung, drew benefits from his claim. A November 30, 2014, letter to Ms. McClung from the Social Security Administration indicates she was granted an increase in her payments to $519.

         On August 20, 2015, Mr. McClung passed away. His death certificate listed coal workers' pneumoconiosis as a factor in his death. Ms. McClung received a letter from the Social Security Administration on September 7, 2015, indicating it had received notice that the decedent died and that Ms. McClung's benefits were increasing to $1, 225.20 due to his death. A September 23, 2015, letter confirmed that she was entitled to disabled dependent benefits in the amount of $1, 225.20.

         Ms. McClung completed an application for fatal workers' compensation dependent's benefits as well as an application for 104 weeks of dependent's benefits on September 29, 2015. She stated that she was fully dependent on the decedent at the time of his death. Ms. McClung admitted that she did not live in the same house as the decedent but stated that he contributed to her support in the amount of $183.25.

         A December 16, 2015, session note from Raleigh County Medical Services indicates Ms. McClung was diagnosed with bipolar disorder, obsessive-compulsive disorder, and anxiety disorder. She stated that she dropped out of school after tenth grade and that she was currently living on her own. She did not have a guardian and denied any hospitalizations in the past. It was noted that she was oriented in all spheres and showed deficient coping skills. Ms. McClung reported that she lives with her boyfriend and her two sons. On December 21, 2015, Ms. McClung saw Edward Bez, M.D., who diagnosed bipolar disorder, obsessive-compulsive disorder, and anxiety disorder.

         On January 11, 2016, Raleigh County Medical Services noted that Ms. McClung was seen by Dr. Bez and requested that he complete paperwork saying that Ms. McClung is an invalid so she could receive dependent's benefits. A General Nursing Progress Report completed that day indicates Dr. Bez was unable to complete the invalid form. He noted that the form required a doctor to certify that Ms. McClung is disabled. On February 25, 2016, Dr. Bez stated that Ms. McClung was taking medication with no improvement. On March 17, 2016, she returned to Raleigh County Medical Services and the treatment note indicated she was concerned that Dr. Bez did not understand the severity of her psychiatric problems. She underwent therapy sessions from March 25, 2016, through April 6, 2016. On April 7, 2016, it was noted that Ms. McClung had shown no improvement. She was still very paranoid and had difficulty dealing with the public.

         Dr. Bez completed an Invalid Medical Verification Form on April 20, 2016, in which he concluded that Ms. McClung was an invalid due to bipolar disorder with psychosis, obsessive-compulsive disorder, and psychosis. The claims administrator denied an application for 104 weeks of dependent's benefits and fatal dependent's benefits on July 7, 2016. On November 9, 2016, a treatment note by Raleigh County Medical Services indicates Ms. McClung had stopped taking all of her medications because she was pregnant. Ms. McClung underwent a clinical evaluation by Sherry Barker on March 3, 2017. Ms. Barker noted that she came in with her boyfriend. She had never been married. Her diagnoses remained the same, and it was noted that Ms. McClung was off of her medication due to pregnancy.

         Ms. McClung testified in a deposition on March 29, 2017, that she did not finish high school. She suffers from bipolar disorder with psychosis and obsessive-compulsive disorder with psychosis. She stated that her father received a permanent total disability award before he died. He also started receiving Social Security disability, which Ms. McClung also drew starting at age eighteen. She still receives those benefits. Ms. McClung testified that she has never had a job. On cross-examination, Ms. McClung admitted that she did not live with her father at the time of his death, though some of her siblings did. Her father helped her pay her bills when she first moved out in 1995, but she currently lives with her boyfriend, Ernest Johnson, and he manages her financial affairs.

         A June 20, 2017, treatment note by Raleigh County Medical Services indicates Ms. McClung was seen at her boyfriend's insistence. She was not taking her medication and was seeing shadows, hearing voices, and was suspicious of everyone. She was seen by Dr. Bez on June 30, 2017, and he noted that she was still paranoid and her obsessive-compulsive issues were interfering with her daily life.

         On April 10, 2018, the Office of Judges reversed the claims administrator's rejection of the claim, granted 104 weeks of dependent's benefits, held the claim compensable on a nonmedical basis, and referred the claim to the Occupational Pneumoconiosis Board to determine if occupational pneumoconiosis contributed to or hastened the decedent's death. It first noted that pursuant to West Virginia Code § 23-4-10(d) (2018), a person is considered a dependent if they are an invalid child who is dependent upon the decedent, in whole or in part, for his or her support. Further, West Virginia Code § 23-4-10(e) (2018) provides that if a person who received a permanent total disability award dies leaving any dependents, an award shall be made to the dependents in an amount equal to 104 weeks times the weekly benefits the worker was receiving.

         The Office of Judges found that Ms. McClung was thirty-nine years old at the time of the decision and had three children. She had not lived with her father in many years. According to her treating physician, Dr. Bez, Ms. McClung does not require care and is capable of taking care of her daily needs. However, she has never been employed and has been diagnosed with bipolar disorder, obsessive-compulsive disorder, and an anxiety disorder. The Office of Judges found that this Court defined the meaning of a dependent in Poccardi v. State Compensation Commissioner,79 W.Va. 684, 91 S.E. 663 (1917). This Court held that whether someone is a dependent is conditioned upon whether they were actually dependent upon the earnings of the decedent for support and maintenance. It further clarified that the degree of dependency is not important. The Office of Judges determined that ...


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