Bradford v. Workers' Compensation Com'r

• Decision Date: 05 September 1991
• Docket Number: No. 20047,20047
• Citation: 408 S.E.2d 13,185 W.Va. 434
• Court: West Virginia Supreme Court
• Parties: Corena BRADFORD, Widow of John Bradford, Appellant, v. WORKERS' COMPENSATION COMMISSIONER and Ranger Fuel Corporation, Appellees.

Page 13

408 S.E.2d 13

185 W.Va. 434

Corena BRADFORD, Widow of John Bradford, Appellant, v. WORKERS' COMPENSATION COMMISSIONER and Ranger Fuel Corporation, Appellees.

No. 20047.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1991.

Decided July 8, 1991.

Rehearing Denied Sept. 5, 1991.

Syllabus by the Court

1. "Where there is a causal connection between an injury received by an employee in the course of and resulting from his employment and his death, a claim for compensation by the widow of the deceased employee is compensable." Syllabus Point 3, Evans v. State Compensation Director, 150 W.Va. 161, 144 S.E.2d 663 (1965), overruled on other grounds, Brogan v. Workers' Compensation Comm'r, 174 W.Va. 517, 327 S.E.2d 694 (1984).

2. "To obtain benefits under W.Va.Code, 23-4-10(b) (1978), a dependent is required to satisfy the following conditions: First, the deceased employee must have suffered a compensable personal injury or contracted occupational pneumoconiosis or another occupational disease. Second, this injury or disease must have caused the employee's death. Third, if death was due to injury, the disability must have been continuous from the date such injury occurred until the date of death." Syllabus Point 1, Vandergriff v. Workers' Compensation Comm'r, 183 W.Va. 148, 394 S.E.2d 747 (1990).

3. The appropriate test under W.Va.Code, 23-4-10(b) (1978), is not whether the employee's death was the result of the occupational injury or disease exclusively, but whether the injury or disease contributed in any material degree to the death.

Don M. Stacy, Beckley, for appellant.

William F. Richmond, Jr., Abrams, Byron, Henderson & Richmond, Beckley, for appellee Ranger Fuel Corp. MILLER, Chief Justice:

This appeal involves a claim for widow's benefits under W.Va.Code, 23-4-10(b) (1978), in which we are asked to address the degree of proof that must be shown to establish that a deceased employee's occupational pneumoconiosis (OP) caused his death. The application of the claimant, Corena Bradford, for widow's benefits was rejected by the Workers' Compensation Commissioner and the Workers' Compensation Appeal Board on the ground that OP was neither the cause of nor a major contributing factor in the death of the claimant's deceased spouse, John Bradford.

Mr. Bradford was employed as a coal miner for twenty-seven years, the last eleven of which he worked for Ranger Fuel Corporation. In December, 1976, he ceased work for medical reasons and filed a claim with the Commissioner for OP benefits. The OP Board found sufficient evidence to justify a diagnosis of OP in the advanced stage with a total pulmonary functional impairment of capacity to work. As a result, the Commissioner granted Mr. Bradford a permanent total disability (PTD) award.

In March of 1983, Mr. Bradford visited John M. Daniel, M.D., complaining of marked difficulty in breathing. Dr. Daniel diagnosed chronic obstructive pulmonary disease, coal worker's pneumoconiosis, and arteriosclerotic heart disease. Dr. Daniel concluded that Mr. Bradford would be a good candidate for a transtracheal oxygen delivery system, and a transtracheal catheter was surgically inserted. These measures apparently succeeded in relieving Mr. Bradford's breathing problems for the next two years.

In January of 1985, however, Mr. Bradford was admitted to the hospital with complaints of increased difficulty in breathing. At that time, x-rays revealed an unusually rounded nodular density in his chest. A CT scan of the chest was suggested, but Mr. Bradford was apparently unable to undergo this procedure because he had difficulty breathing in the supine position. Dr. Daniel diagnosed chronic obstructive pulmonary disease with respiratory failure, pneumoconiosis, and cor pulmonale. Dr. Daniel recommended out-patient evaluation for a possible lung tumor, although he noted that "any therapy that would be performed on this patient for that particular diagnosis would be strickly [sic] palliative."

In June of 1985, Mr. Bradford was hospitalized for further tests by George E. Lovegrove, M.D. X-rays and a CT scan of the chest confirmed the existence of a pulmonary lesion, apparently increasing in size, which Dr. Lovegrove concluded was probably secondary to a reactive lymph node. The CT scan also revealed suspicious liver lesions consistent with metastatic disease. Needle biopsies revealed evidence of fatty infiltration of the liver, but showed no evidence of malignancy. A second CT scan, conducted in August, 1985, revealed no change in the pulmonary lesion, but a marked progression and enlargement of the liver lesions consistent with a rapidly progressive malignant process.

On August 12, 1985, Mr. Bradford was admitted to the hospital for acute upper gastrointestinal bleeding. While hospitalized, Mr. Bradford underwent an open-liver biopsy which revealed the presence of metastatic cancer, the primary site of which was unknown. Shortly thereafter, Mr. Bradford developed acute breathing difficulties and acute superior vena caval syndrome. ¹ Mr. Bradford's condition was stabilized somewhat with steroid therapy, but Dr. Lovegrove felt that he would not be a candidate for radiation therapy due to his rapid deterioration. Mr. Bradford was discharged from the hospital with a diagnosis of widely metastatic carcinomatous process primarily involving his lungs and liver. The prognosis was very poor.

On September 3, 1985, Mr. Bradford died at the age of fifty-seven. The death certificate listed metastatic carcinoma as the immediate cause of death. Superior vena caval syndrome and chronic obstructive pulmonary disease were listed as "conditions ... which gave rise to" the immediate cause of death. ² No autopsy was performed.

The claimant subsequently filed an application for death benefits pursuant to W.Va.Code, 23-4-10(b). ³ After issuing a nonmedical ruling in favor of the claimant, the Commissioner referred the claim to the OP Board for evaluation.

In support of her claim, the claimant submitted a letter from Dr. Daniel detailing his treatment of Mr. Bradford. Dr. Daniel stated that at the time the pulmonary lesion was discovered in January 1985, Mr. Bradford was not a candidate for surgery, which Dr. Daniel characterized as "the definative [sic] therapy that is necessary for the treatment of cancer," because of the advanced stage of his pulmonary impairment. Dr. Daniel further stated that if such therapy had been carried out, Mr. Bradford might have survived. As a consequence, Dr. Daniel concluded that the chronic obstructive lung disease and the coal worker's pneumoconiosis were "major contributing factor[s]" in Mr. Bradford's death.

After reviewing the available medical evidence, the OP Board, in a report dated March 24, 1987, concluded that Mr. Bradford's death was not due to OP and that OP was not a major contributing factor in his death. Based on these findings, the Commissioner, by order dated April 17, 1987, rejected the claim. ⁴

The claimant protested this ruling. In a report dated September 12, 1988, Dr. Lovegrove stated that Mr. Bradford's death was due to "a malignant process," most likely lung cancer which spread to the liver. Dr. Lovegrove was of the opinion that Mr. Bradford would have died from the rapidly progressive liver cancer regardless of any other impairment. Dr. Lovegrove also concluded, however, that Mr. Bradford's death was "markedly hastened" by his severe pulmonary impairment.

The claimant also submitted a report dated April 4, 1988, from D.L. Rasmussen, M.D. Although Dr. Rasmussen had not examined Mr. Bradford for a number of years prior to his death, he offered several conclusions concerning Mr. Bradford's death based on his review of the medical records supplied by the claimant. Dr. Rasmussen agreed that Mr. Bradford's death was due primarily to cancer, but found it "medically reasonable" to conclude that death was hastened by the severe pulmonary impairment. Accordingly, Dr. Rasmussen found it reasonable to conclude that OP was a contributing factor in accelerating Mr. Bradford's death from cancer.

At a hearing conducted on April 26, 1989, members of the OP Board testified with respect to their findings and conclusions. James H. Walker, M.D., testified that after reviewing the medical evidence, he concluded that the immediate cause of death was probably liver cancer, although it was unclear whether the primary site of the malignancy was the lungs or the liver. Dr. Walker recognized the severity of Mr. Bradford's pulmonary impairment due to OP, which he believed made it more difficult to establish the diagnosis of cancer and precluded surgery as a treatment. Dr. Walker also stated, however, that because the cancer was progressing so rapidly and had spread, Mr. Bradford could not have been successfully treated even if he had had normal pulmonary function. For this reason, Dr. Walker concluded that OP had played no part in Mr. Bradford's death. William Revercomb, M.D., agreed that Mr. Bradford's cancer could not have been successfully treated through surgery and that Mr. Bradford would have died of cancer even if he had had no pulmonary impairment. Consequently, Dr. Revercomb also concluded that OP did not contribute to Mr. Bradford's death.

By order dated June 7, 1989, the Commissioner affirmed the prior order rejecting the claim. The claimant appealed to the Appeal Board, which, by order dated October 18, 1990, affirmed the Commissioner's ruling. In essence, the Appeal Board concluded that because Mr. Bradford would have died from the cancer even if he had had no pulmonary impairment, OP was not a major contributing factor in his death. It is from this order that the claimant now appeals.

In this appeal, the only question is whether there was a sufficient causal connection between Mr. Bradford's admittedly work-related pulmonary impairment and his death to entitle the claimant to death benefits under W.Va.Code, 23-4-10(b). The...