Ruth Bishop, Widow v. W. Va. Ofc. of Insurance Commissioner/Black Horse Mining, etc.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS January 15, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
RUTH BISHOP, WIDOW OF OF WEST VIRGINIA

JAMES DOTSON BISHOP,
Claimant Below, Petitioner

vs.) No. 14-0168 (BOR Appeal No. 2048624)
(Claim No. 890069894)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

BLACK HORSE COAL MINING AND
OSBORNE MINING EQUIPMENT,
Employers Below, Respondents

MEMORANDUM DECISION
Petitioner Ruth Bishop, widow of James Dotson Bishop, by Robert M. Williams, her
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
The West Virginia Office of the Insurance Commissioner, by Mary Rich Maloy, its attorney,
filed a timely response.

This appeal arises from the Board of Review’s Final Order dated January 24, 2014, in
which the Board affirmed a July 18, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 21,
2010, decision which denied a request 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

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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. Bishop, a coal miner, developed occupational pneumoconiosis in the course of his
employment. He passed away on August 23, 2009. The death certificate listed the cause of death
as pneumonia/enterobacter cloacal. Renal insufficiency, respiratory failure, and cirrhosis were
listed as secondary conditions. An autopsy report, limited to the lungs, found simple
occupational pneumoconiosis, passive congestion of the lungs, fibrous adhesions between the
left lung and chest wall, and right pleural effusion. Mrs. Bishop requested dependent’s benefits
based upon her husband’s death, and the claims administrator denied the request on December
21, 2010.

In a January 9, 2013, letter, Glen Baker, M.D., stated that he reviewed Mr. Bishop’s
records and opined that he died a respiratory death secondary to pneumonia. Dr. Baker found
that occupational pneumoconiosis made Mr. Bishop more susceptible to pneumonia. He stated
that his cardiac condition may have been the more disabling condition, but Mr. Bishop also had
respiratory failure, which was contributed to by occupational pneumoconiosis. Gregory Fino,
M.D., disagreed in his March 12, 2013, letter. He found that Mr. Bishop died as the result of
multiple problems including significant kidney failure, very poor heart functioning, liver failure,
gastrointestinal bleeding, and an acute abdomen. He stated that Mr. Bishop would have died
when and as he did regardless of his occupational pneumoconiosis.

The Occupational Pneumoconiosis Board testified in a deposition before the Office of
Judges on May 15, 2013. Jack Kinder, M.D., stated, on behalf of the Board, that Mr. Bishop had
coronary bypass surgery one month prior to his death. He recovered, was discharged, and was
then readmitted for renal failure. At that time, he had a gastrointestinal bleed, ischemic stomach,
and dead bowel. He became septic and died. Dr. Kinder opined that Mr. Bishop’s occupational
pneumoconiosis played no role in his death because he developed pneumonia due to bacteria in
his lung that originated from his bowel. Dr. Kinder also asserted that occupational
pneumoconiosis did not decrease Mr. Bishop’s chance of survival. Mahendra Patel, M.D., also of
the Occupational Pneumoconiosis Board, concurred.

The Office of Judges affirmed the claims administrator’s decision in its July 18, 2013,
Order. The Office of Judges found that the record suggests that Mr. Bishop did not die a
respiratory death. Approximately two months before he died, he was admitted to the hospital for
unstable angina and coronary disease. The discharge summary did not prominently discuss his
occupational pneumoconiosis. The following month, he underwent surgery at Charleston Area
Medical Center for an urgent redo coronary bypass grafting times three. Occupational
pneumoconiosis was not mentioned as a secondary diagnosis at that time. Approximately one
month later, he was readmitted to Charleston Area Medical Center for management of septic
shock and a necrotic stomach/bowel. He passed away shortly thereafter. The Office of Judges
found that Dr. Baker was the only physician of record to suggest that occupational
pneumoconiosis contributed in any material degree to Mr. Bishop’s death. Both the Occupational
Pneumoconiosis Board and Dr. Fino found that his death was the result of causes other than
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occupational pneumoconiosis. The Office of Judges therefore found that Mrs. Bishop failed to
prove that occupational pneumoconiosis contributed in an material degree to her husband’s
death, and she was therefore not entitled to dependent’s benefits. The Board of Review adopted
the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on
January 24, 2014.

On appeal, Mrs. Bishop argues, per Dr. Baker’s report, that occupational pneumoconiosis
was a material contributing factor in Mr. Bishop’s death. The West Virginia Office of the
Insurance Commissioner asserts that the Board of Review committed no reversible error by
finding the opinion of the Occupational Pneumoconiosis Board to be more credible than that of
Dr. Baker. After review, we agree with the reasoning of the Office of Judges and the conclusions
of the Board of Review. The standard for granting dependent’s benefits is not whether the
employee’s death was the result of the occupational disease exclusively, but whether the
occupational disease contributed in any material degree to the death. Bradford v. Workers’
Comp. Comm’r, 185 W.Va. 434, 408 S.E.2d 13 (1991). The evidentiary record indicates that Mr.
Bishop’s death was the result of conditions other than occupational pneumoconiosis and that
occupational pneumoconiosis did not contribute in any material degree to his death.

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.

ISSUED: January 15, 2015

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

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