Ash v. Glaspell Lumber Co.

• Decision Date: 11 January 2022
• Docket Number: 20-0607
• Court: Virginia Supreme Court
• Parties: JUNE ASH, WIDOW OF ROY D. ASH, Claimant Below, Petitioner v. GLASPELL LUMBER CO., INC., Employer Below, Respondent

JUNE ASH, WIDOW OF ROY D. ASH, Claimant Below, Petitioner v. GLASPELL LUMBER CO., INC., Employer Below, Respondent

No. 20-0607

Supreme Court of Appeals of West Virginia

January 11, 2022

(BOR Appeal No. 2055290) (Claim No. 2017002170)

MEMORANDUM DECISION

Petitioner June Ash, widow of Roy D. Ash, by Counsel J. Thomas Greene Jr., appeals the decision of the West Virginia Workers' Compensation Board of Review ("Board of Review"). Glaspell Lumber Co., Inc., by Counsel H. Toney Stroud, filed a timely response.

The issue on appeal is dependent's benefits. The claims administrator denied a request for dependent's benefits on December 17, 2018. The Workers' Compensation Office of Judges ("Office of Judges") affirmed the decision in its April 20, 2020, Order. The Order was affirmed by the Board of Review on July 8, 2020.

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.

The standard of review applicable to this Court's consideration of workers' compensation appeals has been set out under W.Va. Code § 23-5-15, in relevant part, as follows:

(b)In reviewing a decision of the board of review, the supreme court of appeals shall consider the record provided by the board and give deference to the board's findings reasoning and conclusions.

(c)If the decision of the board represents an affirmation of a prior ruling by both the commission and the office of judges that was entered on the same issue in the same claim, the decision of the board may be reversed or modified by the Supreme Court of Appeals only if the decision is in clear violation of Constitutional or statutory provision, is clearly the result of erroneous conclusions of law, or is based upon the board's material misstatement or mischaracterization of particular components of the evidentiary record. The court may not conduct a de novo re-weighing of the evidentiary record.

See Hammons v. W.Va. Off. of Ins. Comm'r, 235 W.Va. 577, 582-83, 775 S.E.2d 458, 463-64 (2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission, 230 W.Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising in the context of decisions issued by the Board. See also Davies v. W.Va. Off. of Ins. Comm'r, 227 W.Va. 330, 334, 708 S.E.2d 524, 528 (2011).

Mr. Ash was a plant worker for forty-four years, during which time he was exposed to hazardous dust. An April 15, 2015, CT scan of the lungs showed findings suggestive of pulmonary fibrosis. There were no acute infiltrates or pulmonary fibrosis nodules.

The Occupational Pneumoconiosis Board ("OP Board") testified in a March 21, 2018, hearing. Johnsey Leef, M.D. testified on behalf of the Board that he reviewed the chest x-rays and diagnosed occupational pneumoconiosis. Jack Kinder, M.D., agreed with the diagnosis and opined that the East Ohio Regional pulmonary studies showed total impairment. Dr. Kinder stated that he was not sure why the OP Board previously found that Mr. Ash had 30% impairment attributable to occupational exposure and the remaining impairment was due to nonoccupational causes. Dr. Kinder testified that the OP Board reviewed Dr. Lenkey's report, in which he opined that Mr. Ash had 50% impairment due to asbestosis. Dr. Kinder stated that it was difficult to disagree with Dr. Lenkey's finding. He noted that Mr. Ash smoked two packs of cigarettes a day for twenty to thirty years. Dr. Kinder believed that there was enough disease process visible on Mr. Ash's chest x-rays to find 50% impairment attributable to occupational pneumoconiosis. However, Dr. Kinder stated that he...