Sharon Johnson, Widow v. Alcan Rolled Products

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS
FILED
SHARON JOHNSON, WIDOW OF September 12, 2013
RORY L. PERRY II, CLERK
HAROLD O. JOHNSON (DECEASED), SUPREME COURT OF APPEALS

Claimant Below, Petitioner OF WEST VIRGINIA

vs.) No. 11-1729 (BOR Appeal No. 2045991)
(Claim No. 2009075158)

ALCAN ROLLED PRODUCTS – RAVENSWOOD, LLC,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Sharon Johnson, by Robert Williams, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Alcan Rolled Products – Ravenswood,
LLC, by H. Toney Stroud, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated November 22, 2011, in
which the Board affirmed an April 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 16, 2009,
decision denying Ms. Johnson’s application for dependent’s benefits. 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. Johnson worked for Alcan Rolled Products – Ravenswood, LLC. The record
demonstrates that during his life, he received a 5% permanent partial disability award for
occupational pneumoconiosis. Mr. Johnson passed away on February 4, 2008. The death
certificate listed the immediate causes of death as sudden death, possible myocardial infarction
with ASHD as a condition leading to immediate death. It also listed other significant conditions
including COPD. On August 25, 2009, the Occupational Pneumoconiosis Board found that
occupational pneumoconiosis was not a material contributing factor in Mr. Johnson’s death, and
noted that there was insufficient evidence to establish a diagnosis of occupational
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pneumoconiosis. The claims administrator denied Ms. Johnson’s application for dependent’s
benefits based on the findings of the Occupational Pneumoconiosis Board on October 16, 2009.

The Office of Judges affirmed the claims administrator’s decision, and held that
occupational pneumoconiosis was not a material contributing factor in the decedent’s death. On
appeal, Ms. Johnson disagrees and argues that when the evidence is weighed in this case, the
ruling should be in her favor, noting that Dr. Rasmussen found that occupational pneumoconiosis
was a material contributing factor. Alcan Rolled Products maintains that the evidence establishes
that Mr. Johnson died a cardiac death, and that occupational pneumoconiosis did not contribute
to his death. Dr. Rasmussen found that pulmonary hypertension was a predominant cause of Mr.
Johnson’s sudden death, and opined that it was most likely due to cardiac dysrhythmia which is
probably due to Mr. Johnson’s asbestosis resulting from thirty-three years of occupational
exposure. Dr. Renn found that Mr. Johnson died a sudden, cardiac death, and that occupational
pneumoconiosis did not cause, contribute to, or hasten his demise.

In Bradford v. Workers’ Compensation Com’r, Syl. Pt. 3, 185 W.Va. 434, 408 S.E.2d 13
(1991), this Court held that in order to establish entitlement to dependent’s benefits, a claimant
must show that an occupational disease or injury “contributed in any material degree to the
death.” The Office of Judges found that Dr. Rasmussen’s report was not persuasive, and noted
that he made several conclusory assertions despite noting that a CT scan did not necessarily
support his opinion. It noted that Dr. Renn found that Mr. Johnson died a sudden cardiac death,
and would have died when and how he did whether or not occupational dust exposure occurred.
Further, the Office of Judges noted that 2005 medical records demonstrate that most of Mr.
Johnson’s lung problems seemed to be attributable to his extensive smoking history. The Office
of Judges further noted that the Occupational Pneumoconiosis Board found that occupational
pneumoconiosis was not a material contributing factor in Mr. Johnson’s death, and found that the
Occupational Pneumoconiosis Board’s findings and conclusions are credible and reliable. The
Board of Review reached the same reasoned conclusions in its decision of November 22, 2011.
We agree with the reasoning and conclusions of the Board of Review.

For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.

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ISSUED: September 12, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum

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