Emma Harris, Dependent of Carl Harris (Deceased) v. Pine Ridge and The Insurance Commissioner of West Virginia in its capacity as administrator of the Self-Insured Employer Security Risk Pool

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

EMMA HARRIS, DEPENDENT OF CARL L. HARRIS (DECEASED),
Claimant Below, Petitioner
FILED
vs.) No. 23-ICA-188 (JCN: 2020019743)
September 5, 2023
EDYTHE NASH GAISER, CLERK
PINE RIDGE COAL COMPANY, LLC, INTERMEDIATE COURT OF APPEALS
Employer Below, Respondent OF WEST VIRGINIA

and

INSURANCE COMMISSIONER OF WEST VIRGINIA,
in its capacity as the administrator of The Self-Insured Security Risk Pool,
Respondent

MEMORANDUM DECISION

Petitioner Emma Harris, dependent of Carl L. Harris (deceased), appeals the April
14, 2023, order of the Workers’ Compensation Board of Review (“Board”). Respondent
Pine Ridge Coal Company, LLC, did not file a response. Respondent Insurance
Commissioner of West Virginia (“Insurance Commissioner”) in its capacity as the
administrator of The Self-Insured Guaranty Risk Pool filed a timely response. 1 Petitioner
did not file a reply. The issue on appeal is whether the Board erred in affirming the claim
administrator’s order, which denied the claim.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s Order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Prior to his death, Mr. Harris filed several claims seeking workers’ compensation
benefits based upon a diagnosis of occupational pneumoconiosis (“OP”). These claims,
spanning from 1985 to 2002, resulted in permanent partial disability (“PPD”) awards
totaling 30% PPD. Also prior to his death, Mr. Harris was diagnosed with several other
health conditions, including chronic obstructive pulmonary disease (“COPD”),

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Emma Harris is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
Insurance Commissioner is represented by James W. Heslep, Esq.

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atherosclerotic heart disease, diabetes, acidosis, hypertension, pulmonary hypertension,
chronic kidney disease, dehydration, trouble swallowing, and memory loss/dementia.

On December 7, 2019, Mr. Harris died. His death certificate listed COPD as the
immediate cause of death. Ms. Harris signed an Application for Fatal Dependents’ Benefits
on January 7, 2020. By order dated April 28, 2020, the claim administrator approved the
claim on a non-medical basis. However, on April 22, 2021, the Occupational
Pneumoconiosis Board (“OP Board”) issued its findings that OP was not a material
contributing factor in Mr. Harris’ death. The OP Board noted that there were no
radiographs available for interpretation, nor had an autopsy been performed. Based on the
OP Board’s findings, the claim administrator denied the claim on June 14, 2021. Ms. Harris
protested.

Several medical records were submitted into evidence during the underlying
litigation. A record from Raleigh General Hospital dated April 5, 2011, indicated that Mr.
Harris had undergone a CT scan, which revealed aeration of the lungs, mild atelectasis in
the upper left lobe and lingula, and mild coal worker’s pneumoconiosis. A record from
Raleigh General Hospital dated October 7, 2014, indicated that Mr. Harris had a fifty-year
history of smoking a pack of cigarettes daily and a twenty-seven-year history of working
in coal mines. The medical record further noted that the impression from the CT scan was
emphysema and pulmonary fibrosis, calcified hilar and mediastinal lymph nodes, and
coronary artery disease.

Also submitted was a letter from Charles Porterfield, D.O., who stated Mr. Harris
did not die solely from coal workers’ pneumoconiosis. Dr. Porterfield noted, however, that
Mr. Harris had pneumonia and COPD and that it is well known that COPD makes
pneumonia more difficult to treat. Dr. Porterfield opined that, by association, coal workers’
pneumoconiosis would have played a factor in Mr. Harris’ eventual death.

On October 25, 2022, Danielle M. Seaman, M.D., a board-certified radiologist/B-
Reader, read a CT scan from May of 2019 and found no evidence consistent with
pneumoconiosis. According to Dr. Seaman, the CT scan revealed acute infection or
scarring from prior infection, atelectasis, or aspiration. Dr. Seaman noted that a CT scan
would be more sensitive than a chest x-ray when confirming or refuting the presence of
pneumoconiosis.

On February 1, 2023, the OP Board held a hearing on the matter. In describing his
review of the May 2019 CT scan, Johnsey Leef, M.D., testified

the stuff going on in the right lower lobe looks more like atelectasis and/or
pneumonia. The right upper lobe is more nonspecific as far as that goes; when
I see a cavitary lesion such as this in a patient with . . . all the other findings,

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I think of an infectious disease process . . . . Again, not pathognomonic for
occupational pneumoconiosis.

Jack Kinder, M.D., testified that he agreed with Dr. Leef’s interpretation. Dr. Kinder
testified that OP did not play a material role in Mr. Harris’ death. According to Dr. Kinder,
medical evidence chronicled after Mr. Harris’ initial OP diagnosis and resulting PPD award
demonstrated that Mr. Harris had multiple medical conditions, including COPD,
atherosclerotic heart disease, diabetes, chronic kidney disease, to name a few. In looking
at the more recent evidence, Dr. Kinder opined that the CT scans, which were better than
x-rays in confirming pneumoconiosis, did not show any signs of OP. Rather, they showed
infectious processes. Dr. Kinder concluded that Mr. Harris died of multiple medical
problems and that he could not conclude that Mr. Harris had OP. Moreover, Dr. Kinder
testified that, even if Mr. Harris did have some mild OP, it would not have played a material
contributing factor in his death given the overwhelming other disease processes he was
experiencing. Bradley Henry, M.D., concurred with the testimony of Drs. Leef and Kinder.

By order dated April 14, 2023, the Board affirmed the claim administrator’s order,
which denied the claim for dependents’ benefits. In reaching its conclusion, the Board
explained the OP Board’s findings, as set forth more fully above, and found that the OP
Board was not clearly wrong in concluding that OP did not play a material contributing
role in Mr. Harris’ death. Ms. Harris now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

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On appeal, Ms. Harris argues that the Board erred in affirming the claim
administrator’s order, which rejected her claim for dependents’ benefits. According to Ms.
Harris, Mr. Harris had been diagnosed with OP dating back to 2010 and Dr. Porterfield had
consistently included that diagnosis in Mr. Harris’ medical records. Ms. Harris argues that
it was clearly established that Mr. Harris had a long history of employment as a coal miner,
suffered from breathing issues and other chronic conditions, and had been awarded a 30%
PPD award due to his OP diagnosis. Further, Dr. Patel found chronic parenchymal lung
changes due to progressive massive fibrosis secondary to complicated pneumoconiosis,
and the Board admitted that OP had been evidenced in previously reviewed x-rays. Ms.
Harris argues that, in spite of all this evidence, the OP Board found that Mr. Harris died
from COPD and other medical issues. Ms. Harris notes that, while Mr. Harris had many
complicated health issues, Dr. Porterfield opined that OP was a factor in Mr. Harris’ death.
Lastly, Ms. Harris notes that she was entitled to the presumption under West Virginia Code
§ 23-4-8c(b) (2009) 2 or that, alternatively, the matter should have been resolved in her
favor pursuant to West Virginia Code § 23-4-1g (2003). 3

Upon our review, we find that Ms. Harris’ arguments are without merit. The
standard for granting dependent’s benefits “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.” Syl. Pt. 3, in part, Bradford v. Workers’
Comp. Comm’r, 185 W. Va. 434, 408 S.E.2d 13 (1991). Pursuant to West Virginia Code §
23-4-6a (2005), if the OP Board’s decision is not found to be “clearly wrong in view of the
reliable, probative, and substantial evidence on the whole record,” then it must be affirmed.

Here, the OP Board concluded that, based on the evidence, OP did not contribute in
any material degree to Mr. Harris’ death. Dr. Leef opined that the CT scan from May of
2019 and November of 2019 did not reveal any pathological features consistent with OP

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Pursuant to West Virginia Code § 23-4-8c(b),

If it can be shown that the . . . deceased employee has been exposed to the
hazard of inhaling minute particles of dust in the course of and resulting from
his or her employment for a period of ten years during the fifteen years
immediately preceding the date of his or her last exposure to such hazard and
that the . . . deceased employee has sustained a chronic respiratory disability,
it shall be presumed that . . . the deceased employee was suffering at the time
of his or her death from occupational pneumoconiosis which arose out of and
in the course of his or her employment. This presumption is not conclusive.
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Pursuant to West Virginia Code § 23-4-1g, in part, “[i]f, after weighing all of the
evidence regarding an issue in which a claimant has an interest, there is a finding that an
equal amount of evidentiary weight exists favoring conflicting matters for resolution, the
resolution that is most consistent with the claimant’s position will be adopted.”
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and rather, demonstrated an “infectious process,” which was consistent with Dr. Seaman’s
interpretation as well. Dr. Kinder agreed with Dr. Leef’s assessment and noted that Mr.
Harris had multiple medical problems including COPD, atherosclerotic heart disease, acute
respiratory failure on top of chronic respiratory failure, and chronic kidney disease, among
other conditions. Dr. Kinder opined that Mr. Harris’s death was attributable to these many
medical problems, pointing out that no autopsy had been performed. According to Dr.
Kinder, even if Mr. Harris had mild OP, it could not be stated with great surety that it was
a material contributing factor in his death given his other significant medical problems. Dr.
Henry also concurred with these findings.

While Ms. Harris argues that Mr. Harris had previously been diagnosed with OP
and received a PPD award for the same, the OP Board explained that Mr. Harris’ prior
diagnosis was based upon x-rays. In the instant claim, the OP Board had the opportunity to
view several CT scans, along with additional medical evidence and reports from different
physicians, which placed them in a better position to determine whether Mr. Harris had
OP. Given all the new evidence, Dr. Kinder opined that Mr. Harris did not have OP as
previously suspected. Further, though Dr. Patel interpreted the scans as revealing OP, Dr.
Leef stated he disagreed with Dr. Patel’s interpretation and explained that the pathology
described by Dr. Patel was “an abnormality that can mask other abnormalities. I can see
where someone might consider that, given the patient’s history, but I don’t see evidence of
[OP] on this case.” Moreover, though Dr. Porterfield stated OP was a factor in Mr. Harris’
death, he did not provide any opinion as to whether it materially contributed to his death in
any way.

Lastly, though Ms. Harris argues she is entitled to the presumption under West
Virginia Code § 23-4-8c(b), we note that the presumption is not conclusive and further find
that the OP Board’s findings sufficiently rebut any presumption that Mr. Harris was
suffering from OP at the time of his death. To the extent Ms. Harris argues that she is
entitled to have the matter resolved in her favor pursuant to West Virginia Code § 23-4-1g,
we note that the Board never found that the various reports of the physicians in this matter
were of equal evidentiary value. Therefore, Ms. Harris is not entitled to have the manner
resolved in her favor.

Given this evidence, we cannot find that the Board committed clear error in adopting
the OP Board’s findings that OP did not materially contribute to Mr. Harris’ death,
especially considering the significant medical conditions he had at the time of his death.
Ms. Harris is entitled to no relief in this regard. Accordingly, we affirm the Board’s April
14, 2023, order.

Affirmed.

ISSUED: September 5, 2023

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CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating.

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