Charleston, WV (WorkersCompensation.com) – The West Virginia Supreme Court of Appeals has upheld a Workers’ Compensation Board of Reviews denial of benefits to the widow of a worker who contracted occupational pneumoconiosis.
The appeals court, in a four to one decision, said the widow did not prove it was the pneumoconiosis that led to her husband’s death.
According to court documents, Stanley Wyco worked as a driller and blaster for Green Construction Company in 1989 when doctors diagnosed him with “moderately severe, partially reversible obstructive ventilator impairment.” Dr. Jes Floreaca stated that Wyco was “totally and permanently disabled as a result of pulmonary impairment caused by exposure to rock dust.” In November of that year, the Occupational Pneumoconiosis Board found that Wyco had total pulmonary function impairment caused by occupational pneumoconiosis. He was granted permanent total disability in February 1990.
Wyco continued to decline in health. From 2007 to 2014, court records show, Wyco was treated for chronic obstructive pulmonary disease, hypoxia, diabetes, asthmatic bronchitis, colon cancer coronary artery disease, and chronic sinusitis. He was in and out of hospitals for those seven years, before passing away on Sept. 27, 2014.
Records show that Wyco was taken to Raleigh General Hospital in cardiac arrest, and died shortly after arriving. The death certificate listed cardiopulmonary arrest as the cause of death, with colon cancer, chronic obstructive pulmonary disease, hypoxia, coronary artery disease and diabetes being secondary causes.
Wyco’s wife, Valeria, applied for death benefits through the WV Workers’ Compensation Commission, but was denied because the Occupational Pneumoconiosis Board found that his occupational pneumoconiosis was not a contributing factor in his death.
With testimony from three doctors who found that his pneumoconiosis was a contributing factor in his death, Valeria took her case to the WV Workers’ Compensation Office of Judges in 2016. The judges upheld the commission’s ruling, citing the Occupational Pneumoconiosis Board’s finding that “it did not make clinical sense to find that the death was the result of respiratory failure caused by occupational pneumoconiosis.” The judges found that while there were treating physicians who found that occupational pneumoconiosis was a contributing factor in Wyco’s death, it could not find that the board was clearly wrong in its conclusions that it was not a contributing factor in his death.
Valeria then appealed the case to the Appeals Court.
In their decision, the court said it was up to Valeria o prove that occupational pneumoconiosis was a contributing factor in her husband’s death. The appeals court also said that it was their job to determine if the board was clearly wrong in its opinion.
“West Virginia Code § 23-4-6a (2005) states that the standard of review is whether or not the Occupational Pneumoconiosis Board was clearly wrong in its opinion. Mr. Wyco had multiple, serious, chronic medical conditions. In the weeks prior to his death, he was hospitalized for colon cancer and underwent three separate surgeries. The death certificate does not list occupational pneumoconiosis as a cause of death. Given the evidence of record, it cannot be said that the Occupational Pneumoconiosis Board was clearly wrong in its decision,” the court wrote.
The appeals court upheld the board’s ruling with Justices Robin J. Davis, Menis E. Ketchum, Allen H. Loughry II and Elizabeth D. Walker concurring, and Chief Justice Margaret L. Workman dissenting.
Reginald Henry, Wyco’s attorney, did not immediately return a request for comment by press time.