Cynthia Griffith v. Alpha Natural Resources, Inc. - Fatal Dependent Benefits

1 I N THE I NTERMEDIATE C OURT OF A PPEALS OF W EST V IRGINIA CYNTHIA GRIFFIT H, dependent of JAMES GRIFFIT H (deceased), Claimant B elow, Petit ioner v.) No. 25- ICA -357 (JCN: 2017006796) ALPHA NATURAL RESOURCES, INC., Employer B elow, Respondent ME MORANDUM D ECISION Petitioner Cynthia Griffith, dependent spouse of James Griffith (deceased), appeals the August 8, 20 25, order of the Workers’ Compensation Board of Revie w (“Board”). Respondent Alpha Natural Resources, Inc. (“ Alpha”) timely filed a response. 1 The issue on appeal is whether the Board erred in affirming the claim administrator’s order, which rejected Mrs. Griffith ’s application for fatal de pendent’s benefits. This Court has jurisdiction ov er thi s appeal pursuant to West Virginia Code § 51 - 11-4 (2024). After co nsidering 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 affir ming the Board’s o rder is ap propriate under Rule 21 of the Rules of Appellate Procedure. Mr. Griffith was seen by Kelly Pitsenbar ger, M.D., on January 4, 20 16, and assessed with chro nic atr ial fibr illation, bronchopneumonia, and essential (pri mary) hy pertension. Mr. Griffith followed up with Dr. Pitsen barger on November 15, 2 016, at which time he was assessed with stage five chronic kidney disease, paroxysmal atrial fibrillation, and hyperthyroidism. On February 16, 2016, Mr. Griffith was see n by Charles Porterfie ld, D.O. Mr. Griffith pre sented to Dr. Porterfield with shortn ess of breath and fatigu e and was diagnosed with diaphragmatic paralysis and restrictive lu ng disease. On J uly 14, 2016, Mr. Griffith underwent an x-ray of the chest, wh ich revealed simple pneumoconi osis, mild cardiomegaly, plate -like atelectasis, and thicke ning of the minor f issure. 1 Mrs. Griffith is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq. Alpha is represented b y Alysia Ko zlow ski, Es q. FILED February 27, 2026 ASHLEY N. DEE M, CHIEF DEPUTY C LERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2 In findings dated March 28, 2017, the O ccup ational Pneumoconiosi s Board (“OP Board”) foun d sufficie nt evidence to just ify a diagnosis of occupatio nal pneumoco niosis (“ OP ”) with 2 0% pulmonary function impairm ent attributable to the disease. The OP Board found that Mr. Griffith was a sixty -nine- year-old undergr ound miner, electrician, a nd face operator for twenty-fiv e years, a surface coal miner for twenty years, and a mai ntenance worker at a correct ional center for three mo nths, who was exposed to a d ust haza rd for forty -five years w ith sufficient exposure to have caused OP or to have perceptib ly aggravated a preexisting OP. The x -ray evidence revealed a mild degree of nodular fibrosis consistent with OP, thi ckening minor fis sure, and no pleural plaque formation or pleural calcifications. On June 28, 2017, Mr. Griffith was seen by Maria Boustani, M. D., at Rheumatology and Pulmonar y Clinic, PLLC. An x-ray of hi s chest revealed no ac ute cardiopulmonary disease, minimal pleural thickening in the horizontal fissure, and an elevated right hemidiaphragm. On July 21, 2017, Mr. Griffith underwent pulmonar y functio n testing at Raleigh General Hospital, which revealed a severe decrease in both FEV1 and FVC with a 9% im provement in th e FEV1 post bronchod ilators. The FEV1 was 42% of predicted at 1.44. The DLCO was moderately decreased at 63% of predicted. On May 23, 2019, Mr. Griffith follo wed up with Dr. Boustani regarding his pulmonary problems and reported that he had pneumonia in January, and that he felt as if he was still short of breath. Dr. Bousta ni assessed him with pn eumonia, an elevated right hemidiaphragm, restric tive and obstructive lu ng disease wit h a moderate decrease in th e fusion capacity, short ness of breath, h ypoxemia, and obesit y. Mr. Griffith was agai n seen by Dr. Boustani on May 31, 2019, and was assessed with consolidation and loculated pleural effu sion, which Dr. Bo ustani opined could be cardiac, but she could n ot rule out the possibility of pneumonia with empyema. Mr. Griffith was admitted to Raleigh General Hospital and discharge d on June 5, 2019. His discharge diagnosis included right lowe r lob e pneumonia, pleural effusion, status post thoracentesis, chronic diastolic heart failure, atrial fibrillation, pneumoconiosis, history of pu lmonary embolism, a nd paralyzed right hemidiaphragm. On September 9, 2021, Mr. Griffith underwent pulmonary function t esting at New River Health Breat hing Center. The interpre tation of the study was severe obstruction, probably pseudo-restri ction, and the DLC O was moderately reduce d. Mr. Griffith passed away on December 20, 2021. His deat h certificate list ed t he cause of death as atherosclerotic heart dise ase of the native coronary. An autopsy report from Logan Regional Medical Center, dated April 8, 2022, indicate d that Mr. Griffi th’s final path ological diagnosis wa s sim ple coal workers’ pneumoconiosis of the right lung with extensive adhesions to the anterior, posterior, and lateral chest wall; anthracosilico sis of bilateral perihi lar ly mph nodes; an d a clinical history of coal m ining occupation. It was opined that the se findin gs contributed to Mr. G riffith’s death.

3 Mrs. Griffith submitted an Application for Fatal Dependent’s Benefits dated June 3, 2022. Mr. Griffith’s date of death was listed as December 20, 2021. Mrs. Griffith indicated that prior to Mr. Griffith’s death, he worked for Mount Olive Corrections from 2017 -2021 and for Alpha from 2005 -2016. By order date d Dec ember 13, 2022, th e claim ad ministrator held the claim compensable on a non - medical basis and referred the claim to the OP Boar d. In findings dated May 16, 2023, the OP Board opined tha t OP was not a materia l contributing factor in Mr. Griffith’s death. X - ray e vidence dat ed Mar ch 28, 2017, r evealed mild nod ular fibrosis cons istent with simpl e parenchymal OP, thickening minor fissure, and no plaqu e or pleural calcificatio ns. By order dated June 30, 2023, the cl aim administrator found that OP was no t a material contributing factor in Mr. Griffith’s death an d denied the application for fatal dependent benefits based on the findings of the OP Board. Mrs. Griffith protested this order to the B oard. On November 1, 2023, an initial hearing was h eld to take the OP Board’s testimony. The OP Board radiologist, Johnsey Leef, Jr., M.D., testified that Mr. Griffith’s chest x -ray dated March 28, 2017, was of good quality an d showed a nodul ar fibrotic process throu gh both lungs without evidence of pleural diseas e, consis tent with simple OP. Jack Kinder, M.D., chairman of the OP Board, agreed with Dr. Leef’s interpretation of the x - rays. Dr. Kinder stated that th e autopsy examiner showed pneumoconio sis, and a coronary catheterization showed no significant coronary disease but severe pulmonary hypertension with a normal left ventricular function. The OP Board noted that i t did not have many records in the case o r much informat ion in the file, and given the limited infor mation available, the OP Board members opined that Mr. Griffith’s deat h was presumptively due to pneumoconiosi s. Victor Roggli, M.D., a professor of pathology from Duke University Health System Pathology and Laboratory Services, reviewed Mr. Griffith’s autopsy results and slide s of tissue obtained at the autopsy, and issued correspondence dated December 3, 2024. Dr. Roggli stated that he r eviewed twelve gla ss slides prepared from tissues obtained at the time of au topsy and fo und sections of lung p arenchyma show ed se vere chronic passive congestion with numerous hemosiderin laden macrophages within the alveolar spaces. Dr. Roggli noted focal ossification and pulmonary edema. Dr. Roggli did not identif y coal dust macules, micronodules, or areas of pro gressive massive fibrosis in any of the ten sections of lung parenchyma, and determine d that sections of regional lym ph nodes showed no silicotic nodules. Dr. Roggli stated t hat the findings in this case are di agnostic for chronic passive congestio n of the lungs secon dary to cardiac dise ase. Dr. Roggli opined that there is no histologic evidence of p neumoconiosis in this case, and that Mr. Griffit h’s cause o f death is re lated to cardiac insufficiency with a contribution from pulmonary disease caused by chronic passive con gestion.

4 On May 7, 2025, a final addit ional hearing was held to take the OP Board’s testimony. Dr. Lee f testified that based on the CT scans dated November 4, 2020, and June 4, 2019, he was not able to make a diagnosis of OP. According to Dr. Leef, CT scans are a better diagnostic modal ity than x-rays for diagnosing OP. Dr. Leef stated that based on the CT scans, there was ev idence of some pleural disease at the right lung base with a small pleural effusion and linear bands of scarri ng, pleural bands at the right lung base, and elevation of the diaphr agm, but that there was no evidence o f a nodular fibrosis. Dr. Leef testified that the C T scan s showe d some coronary artery d isease. Dr. Kinder testified that he agreed with Dr. Leef’s interpretation of the chest x -rays and CT scans. He recalled that the OP Board examined M r. Griffith on March 28, 2017, and diagnosed OP and found a 20% impairmen t in pu lmonary funct ion. Dr. Kinder testified that since the prior hearing, the OP Board had been provided multiple medical records that they did n’t consider or iginally. In p articular, the O P Board not ed th at it n ow had many cardiology reports which revealed Mr. Griffith’s moderate to m oderately s evere aortic stenosis and atria l fibr illation. He indicated that Mr. Griffith likel y died of a card iac arrhythmia. Dr Kinder stated that there was no presence of OP, which would correlate with Dr. Roggli’s evaluation. Furt her, Dr. Kinder noted that Dr. Roggli is a well-known occupational pathologist who has published textbooks on the subject and his belief that Dr. Roggli’s “s tance” was more persuasive than t he medical ex aminer’s autopsy fin dings. Dr. Kinder testified that, in light of the additional medical records, CT scans, and reports from Dr. Roggl i, he would not find OP to be a material contributing factor in Mr. Griffit h’s death. Mallinath Kayi, M.D., agreed with t he statements of Drs. L eef and Kinder. On August 8, 2025, the Board affirmed the claim administrator’s orde r denying the application for fata l de pendent’s benefits. The Board found t hat OP was not a material contributing factor i n Mr. Griffith’s death and that Mrs. Gri ffith did not establish that the OP Board was clearly wrong. Mrs. Griffith now appeals the Boar d’s order. Our standar d of re view is set fort h in West Vi rginia Cod e § 23 -5-12a (b) (2022), in part, as follows: The Intermediate Court of Ap peals may af firm the order or decision of the Workers’ Compensatio n Board of Review or remand the case for further proceedings. It shal l reverse, vacate, or mo dify the order or decision of the Workers ’ Compens ation Board of Review, if the substantial rig hts of the petitioner or petitioners have been prejudiced because the Board of Review’s findings are: (1) In violation of statutory provis ions; (2) In excess of the statutory authority or jurisdiction of the Board of Review; (3) Made upon unlawf ul procedures; (4) Affected by other e rror of law;

5 (5) Clearly wrong in view of t he reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or ca pricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’ n, 250 W. Va. 5 10, 905 S.E.2d 528 (20 24). On appeal, Mrs. Griffith argues that the Boar d erred in adoptin g the OP Board’s opinion that OP was not a material contributing facto r in the dece dent’s death. Further, Mrs. Griffith asserts that the patholo gist who pe rformed the au topsy was in the be st position to determine the cause of death, and that it was against the weight o f the evidence f or the OP Board to rely on the findings of another pathologist who only reviewed slides of th e autopsy and claimed that there was no evidence of OP. We disagre e. The standard for granting dependent’s benef its “is not whether the employee’s death was the result of the oc cupational inj ury or disease exclusivel y, but whether the injury o r disease co ntributed in any material de gree to the death.” Syl. Pt. 3, in part, Bradford v. Worker’s Comp. Com m’r, 185 W. Va. 4 34, 408 S.E. 2d 13 (199 1). In Rhodes v. Workers’ Comp. Div., 209 W.Va. 8, 17, 543 S.E.2d 289, 298 (2000), the Supre me Court of Ap peals of West Virginia held that the party protesting the findings of the OP Board has the burden to establish that the OP Board was clearly wrong. Here, the Board found that OP was not a material contributing factor in Mr. Griffith’s death. Accor ding to Mr. Griffith’s Death Ce rtificate, the i mmediate cause of his death was atherosclero tic heart disease of native coronary. Further, the Board noted that the OP Board opined that the CT scans correlat ed with Dr. Roggli’s opinion that there was no diagnosi s of OP. Th e Board found that Dr. Roggli’s report is more persuasive than the autopsy report. Ultimately, it concluded that Mrs. Griffith did not e stablish that the OP Board’s findings were clearly wrong. Upon review, we co nclude that the Board was not clearly wrong i n finding that O P did not materially contribute to Mr. Griffith’s deat h based on the findings of the OP Board. Further, we conclude that the B oard was not clearly wro ng in f inding that Mr s. Griffith failed to establish that t he OP Board was clearly wrong. The Board’s conclusions are well supported in the rec ord. As the Supreme Court of Appeals of West Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presu m e an agency’s actions are valid as long as the decision is s upported by substantial e vidence or by a rational basis.” Syl. Pt. 3, In re Quee n, 196 W. Va. 442, 473 S.E.2d 48 3 (1996). With this defere ntial stand ard of review in mind, we cannot conclude that the Boar d was clearly wrong in affirming the claim adm inistrator’s order denying Mrs. Griffith ’s application f or fatal dependent’s benefits. Accordingly, we affirm the Board’s Augu st 8, 2025, order.

6 Affirmed. ISSUED: February 27, 2026 CONCURRED IN B Y: Chief Judge Daniel W. Greear Judge Charles O. L orensen Judge S. Ryan White