Fortner v. Westmoreland Coal Co., 14-0435
| Decision Date | 27 March 2015 |
| Docket Number | No. 14-0435,14-0435 |
| Court | West Virginia Supreme Court |
| Parties | NORMA FORTNER, WIDOW OF LUTHER FORTNER, Claimant Below, Petitioner v. WESTMORELAND COAL COMPANY, Employer Below, Respondent |
Petitioner Norma Fortner, widow of Luther Fortner, by Otis R. Mann Jr., her attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Westmoreland Coal Company, by Phyllis M. Potterfield, its attorney, filed a timely response.
This appeal arises from the Board of Review's Final Order dated March 26, 2014, in which the Board affirmed a June 18, 2013, Order of the Workers' Compensation Office of Judges. In its Order, the Office of Judges affirmed the claims administrator's July 28, 2011, decision denying Mrs. Fortner's 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 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. Fortner worked almost fifteen years for Westmoreland Coal Company. On December 15, 1980, he retired. Several years after his retirement, Mr. Fortner's health deteriorated largely due to cardiac problems. In 2001, he had an emergency bypass surgery related to coronary artery disease. Mr. Fortner's health continued to deteriorate, and on March 23, 2010, he died. The death certificate listed congestive heart failure as the cause of his death. It also listed atherosclerotic heart disease and pneumoconiosis as underlying conditions. The next day, Brian S. McCarthy, M.D., performed an autopsy in which he found that the immediate cause of Mr. Fortner's deathwas aspiration pneumonia caused by coal workers' pneumoconiosis. He found that Mr. Fortner had a history of progressively severe complications related to occupational pneumoconiosis and atherosclerotic heart disease. Following Dr. McCarthy's autopsy, Mrs. Fortner filed an application for dependent's benefits. Everett F. Oesterling Jr., M.D., also reviewed Mr. Fortner's medical record and found that his death was due to a cardiac event related to ischemic disease and atherosclerotic cardiovascular disease. Dr. Oesterling noted that Mr. Fortner had massive fibrosis but that his death was not related to pneumoconiosis. The Occupational Pneumoconiosis Board reviewed Mr. Fortner's medical evidence and determined that occupational pneumoconiosis was not a material contributing factor in his death. On July 28, 2011, the claims administrator denied Mrs. Fortner's application for dependent's benefits based on the Board's findings. The Occupational Pneumoconiosis Board also repeated its findings in a hearing before the Office of Judges. Robert H. Swedarsky, M.D., also reviewed Mr. Fortner's records. He found that the day before Mr. Fortner's death he suffered a heart attack which induced cardiac decompression. He determined that this condition caused Mr. Fortner's death and that occupational pneumoconiosis did not shorten his life or contribute to the sequence of events leading to his death. Dr. Swedarsky also questioned the reliability of Dr. McCarthy's autopsy because he evaluated a limited sample of Mr. Fortner's lung tissue. The Occupational Pneumoconiosis Board then testified a second time before the Office of Judges. On behalf of the Board, Jack L. Kinder Jr., M.D., testified that Mr. Fortner's death was...
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