Fortner v. Westmoreland Coal Co., No. 14-0435

• Court: Supreme Court of West Virginia
• Writing for the Court: Chief Justice Margaret L. Workman Justice Robin J. Davis Justice Brent D. Benjamin Justice Allen H. Loughry II
• Decision Date: 27 March 2015
• Parties: NORMA FORTNER, WIDOW OF LUTHER FORTNER, Claimant Below, Petitioner v. WESTMORELAND COAL COMPANY, Employer Below, Respondent
• Docket Number: No. 14-0435

NORMA FORTNER, WIDOW OF LUTHER FORTNER, Claimant Below, Petitioner
v.
WESTMORELAND COAL COMPANY, Employer Below, Respondent

No. 14-0435

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 27, 2015

(BOR Appeal No. 2048594)
(Claim No. 2011005740)

MEMORANDUM DECISION

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 death

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was 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...