LULA DONALSON, WIDOW OF CHARLES LEWIS DONALSON, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and BLOUNT BROTHERS CORP., BENJAMIN F. SHAW CO., and UNION BOILER CO., Employers Below, Respondents
Appeal No. 2052944) (Claim No. 890041454)
Lula Donalson, widow of Charles Lewis Donalson, by Counsel
Robert M. 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 Timothy E. Huffman, filed a timely
issue on appeal is dependent's benefits. The claims
administrator rejected the claim for dependent's benefits
on October 5, 2016. The Office of Judges affirmed the
decision in its April 30, 2018, Order. The Order was affirmed
by the Board of Review on October 19, 2018.
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
Donalson, a coal miner, worked in the mines for thirty-nine
years. The Occupational Pneumoconiosis Board found sufficient
evidence on September 19, 1989, to diagnose Mr. Donalson with
occupational pneumoconiosis; however, it found no impairment
attributable to the disease at that time. On December 30,
1998, Mr. Donalson was granted a 10% permanent partial
disability award for occupational pneumoconiosis.
pulmonary function study was performed on July 31, 2003, by
Dominic Gaziano, M.D. It indicated Mr. Donalson's x-rays
showed bilateral interstitial lung disease as well as pleural
abnormalities consistent with pneumoconiosis. There were no
parenchymal changes consistent with pneumoconiosis. On June
3, 2004, the Occupational Pneumoconiosis Board found that Mr.
Donalson had 20% impairment due to occupational
pneumoconiosis. Pulmonary function testing was performed at
Camden Clark Medical Center on June 2, 2005.
Post-bronchodilator testing failed to show a significant
change in FVC, FEV1, or FEF. This indicated that
bronchodilator therapy would not be helpful. Pulmonary
function testing was performed again on June 9, 2006, by
Camden Clark Medical Center and showed moderately restrictive
ventilatory defect but no diffusion defect.
Donalson underwent chest x-rays on June 6, 2007, which showed
stable enlargement of the heart and chronic obstructive
pulmonary disease with multiple, bilateral calcified pleural
plaques consistent with asbestos related pleural disease with
chronic pleural thickening. There were no acute pulmonary
infiltrates. X-rays were taken again on October 15, 2009, and
showed bilateral multifocal calcified plaques, most likely
indicative of prior asbestos exposure.
notes from Mid-Ohio Valley Medical Group indicate Mr.
Donalson underwent quadruple coronary artery bypass. He was
diagnosed with chronic atrial fibrillation, chronic
obstructive pulmonary disease, and congestive heart failure.
Treatment notes from Parkersburg Cardiology indicate Mr.
Donalson had a long history of coronary artery disease,
advanced chronic obstructive pulmonary disease, and poorly
tolerated paroxysmal atrial fibrillation.
Donalson had repeat pulmonary function testing on October 20,
2010, which revealed moderate restrictive ventilatory
impairment. On May 1, 2013, pulmonary function testing showed
obstructive defect with the suggestion of associated
restriction. Chest x-rays were taken on May 23, 2016, and
showed mild cardiomegaly following a prior heart surgery and
extensive bilateral calcified pleural plaques suggestive of
an asbestos related disease. The x-rays were also suspicious
for a small right basal infiltrate and a small right effusion
concerning for pneumonia. Repeat chest x-rays taken June 3,
2016, showed opacification of the right hemidiaphragm with
mild patchy density compatible with right basilar pneumonia;
probable right pleural effusion; chronic obstructive
pulmonary disease; and multiple, bilateral, scattered
calcified pleural plaques.
11, 2013, chest CT scan showed moderate right pleural
effusion, an oval density in the right lower lung lobe,
possible small nodules in the left lobe of the thyroid, and
extensive bilateral calcified pleural plaques suggestive of
asbestos exposure. The following day, Mr. Donalson presented
at Camden Clark Medical Center with shortness of breath. He
was diagnosed with pleural effusion, asbestosis, chronic
obstructive pulmonary disease, and chronic atrial
fibrillation. Chest x-rays taken on July 24, 2013, showed no
change to the oval density in the right lobe, an enlarged
heart, and extensive bilateral calcified pleural plaques. Mr.
Donalson was again treated at Camden Clark Medical Center on
April 21, 2014. He was admitted to the hospital for pleural
effusion, exacerbated chronic obstructive bronchitis, and
exacerbated chronic obstructive pulmonary disease. Mr.
Donalson reported increased shortness of breath, pain in his
lower ribs, and a low fever. He was diagnosed with pneumonia.
September 12, 2014, Mr. Donalson sought treatment from Camden
Clark Medical Center for chest pain. On March 27, 2015, Mr.
Donalson was treated at Camden Clark Medical Center for
shortness of breath. The treating physician opined that the
shortness of breath may be due to a lung condition but that
pulmonary hypertension may also play a role. A March 31,
2015, chest CT scan showed numerous bilateral calcified
pleural plaques, consistent with asbestosis; small to
moderate pleural scarring in the right lung base; moderate
heart enlargement; and atherosclerotic cardiovascular
disease. A pulmonary function analysis completed on April 23,
2015, showed an obstructive defect with the suggestion of
associated restriction, reduced diffusion capacity, and no
significant response to bronchodilators. On April 29, 2015,
Mr. Donalson was diagnosed with chronic obstructive pulmonary
disease, asbestosis, and pulmonary hypertension. He had a
pulmonary function test that showed both restrictive and
obstructive disease. On June 2, 2015, it was noted that it
was explained to Mr. Donalson that his symptoms stem from
asbestosis, chronic obstructive pulmonary disease, and
pulmonary hypertension, and the most that could be done was
symptom management. It was noted that other components may be
playing a larger role in his shortness of breath.
Donalson passed away on June 4, 2015, at the age of
eighty-eight. The death certificate listed the cause of death
as a heart attack. The underlying causes were ischemic
atherosclerosis, atherosclerotic vascular disease, and high
cholesterol. Chronic obstructive pulmonary disease and oxygen
dependency were listed as other conditions contributing to
death but not related to the underlying cause of death. The
Occupational Pneumoconiosis Board reviewed Mr. Donalson's
medical records and determined that at the time of his death,
he had 20% impairment due to occupational pneumoconiosis. The
Occupational Pneumoconiosis Board opined that occupational
pneumoconiosis was not a material contributing factor in his
death. The claims administrator denied Mrs. Donalson's
request for dependent's benefits on October 5, 2016.
Gaziano performed a record review on June 17, 2017, in which
he opined that Mr. Donalson had asbestosis with 20% pulmonary
functional impairment. Dr. Gaziano found that pulmonary
function testing showed progressive impairment consistent
with asbestos related pleural and parenchymal disease. Dr.
Gaziano opined that Mr. Donalson's cause of death was
primarily a heart attack; however, his severe asbestos
related lung disease, which developed over the course of
fifteen years, was a significant, contributory factor in his
Occupational Pneumoconiosis Board testified in a hearing
before the Office of Judges on March 7, 2018. It stated that
the March 31, 2015, chest CT scan showed extensive pleural
plaques with calcification consistent with asbestos related
pleural disease. However, it found no underlying parenchymal
asbestosis. The Occupational Pneumoconiosis Board determined
that chest x-rays did not show a large amount of chronic
obstructive pulmonary disease. It disagreed with Dr.
Gaziano's finding of parenchymal plaques. The
Occupational Pneumoconiosis Board testified that Mr.
Donalson's lung parenchyma was fairly normal based on the
March 31, 2015, CT scan. The Occupational Pneumoconiosis
Board concluded that ...