Charlotte Hamilton, dependent of Carney Hamilton (deceased) v. Mid-State Mechanical, Inc., and West Virginia Offices of the Insurance Commissioner in its capacity as administrator of The Old Fund

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

CHARLOTTE HAMILTON, DEPENDENT OF CARNEY HAMILTON
(DECEASED),
Claimant Below, Petitioner FILED
July 1, 2024
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 23-ICA-533 (JCN: 900055180) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
MID-STATE MECHANICAL, INC.,
Employer Below, Respondent

and

WEST VIRGINIA OFFICES OF THE INSURANCE COMMISSIONER IN ITS
CAPACITY AS ADMINISTRATOR OF THE OLD FUND,
Respondent

MEMORANDUM DECISION

Petitioner Charlotte Hamilton, Dependent of Carney Hamilton (Deceased), appeals
the October 30, 2023, order of the Workers’ Compensation Board of Review (“Board”).
Respondent Offices of the Insurance Commissioner in its capacity as administrator of the
Old Fund (“Old Fund”) filed a response.1 Ms. Hamilton did not reply. The issue on appeal
is whether the Board erred in affirming the claim administrator’s order, which rejected the
claimant’s application for fatal dependents’ benefits.

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.

On April 23, 1990, the decedent, Carney Hamilton, suffered a compensable
traumatic brain injury (“TBI”) after falling from a ladder while employed by Mid-State
Mechanical, Inc. Mr. Hamilton was granted a permanent total disability (“PTD”) award
due to this injury. Medical records from 2017 indicate that Mr. Hamilton had difficulty
speaking due to dysarthria, suffered from post-traumatic stress disorder after serving in the

1
Ms. Mullins is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene,
Esq. Old Fund is represented by James W. Heslep, Esq. Mid-State Mechanical, Inc. did not
appear.

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military during the Vietnam War, suffered from a seizure disorder, suffered from dementia,
and was showing early signs of Parkinson’s disease. The records further indicate that Mr.
Hamilton suffered cognitive changes after returning from Vietnam, which worsened due
to his TBI.

On January 31, 2021, Mr. Hamilton was seen by Courtney Cundiff, M.D., in the
Ruby Memorial Hospital Emergency Room. Mr. Hamilton presented with generalized
weakness, slurred speech, and altered mental status. Mr. Hamilton reported suffering
similar episodes previously. On June 31, 2021, Mr. Hamilton was seen by Nathaniel
Mohney, M.D. Dr. Mohney indicated that Mr. Hamilton had difficulty speaking, but he
was otherwise alert and had appropriate knowledge and comprehension. A medical report
dated July 14, 2021, indicates that Mr. Hamilton required 24-hour supervision due to his
impulsive behavior, poor judgment, and wandering behavior. The records further indicate
that Ms. Hamilton had to assist him with most activities of daily life.

Mr. Hamilton died on April 6, 2022, due to a mediastinal mass. Mr. Hamilton’s
dependent spouse, Charlotte Hamilton, filed an application for fatal dependents benefits
dated June 17, 2022. In her application, Ms. Hamilton explained that, due to his severe
head injury, Mr. Hamilton was unable to communicate his problems to her or his doctors
and, thus, his mediastinal mass went undetected until it was too late to be treated. Attached
to the application was a progress note from Michael Hildreth, PA-C, dated June 13, 2022.
PA Hildreth indicated that Mr. Hamilton had communication difficulties related to his TBI,
including an inability to relate his pain and symptoms, which could have delayed the
diagnosis of his cancer. On July 7, 2022, the claim administrator issued an order rejecting
Ms. Hamilton’s application for fatal dependents’ benefits due to a finding that Mr.
Hamilton’s compensable injury did not cause his death. Ms. Hamilton protested this order.

Ms. Hamilton was deposed on January 11, 2023. She testified that Mr. Hamilton
suffered a TBI on April 23, 1990, for which he was granted a PTD award. Ms. Hamilton
stated that she took care of Mr. Hamilton for thirty-two years following his TBI. Ms.
Hamilton further testified that Mr. Hamilton had problems communicating and expressing
himself to his doctors. Ms. Hamilton stated that Mr. Hamilton’s tumor was discovered after
he fell and injured his ribs. Ms. Hamilton testified that she believed that Mr. Hamilton was
unable to express what was going on with the tumor, but he had indicated that he had back
pain shortly before the discovery. Ms. Hamilton stated that Mr. Hamilton’s doctors told
her that the tumor was discovered too late, and treatment was not an option.

On October 30, 2023, the Board affirmed the claim administrator’s order rejecting
Ms. Hamilton’s application for fatal dependents’ benefits, finding that Mr. Hamilton’s
compensable injury did not materially contribute to the illness that caused his death. The
Board further found that there was no evidence to support a finding that the mass was
symptomatic before it was discovered. Ms. Hamilton now appeals the Board’s order.

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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.

On appeal, Ms. Hamilton argues that the Board disregarded evidence indicating that
Mr. Hamilton had issues with communication due to his compensable TBI. Ms. Hamilton
further argues that it is reasonable to infer based on PA Hildreth’s statement and the
medical evidence that Mr. Hamilton’s compensable TBI caused a delay in finding the
tumor, which materially contributed to his death. We disagree.

The Supreme Court of Appeals of West Virginia held in Syllabus Point 3 of
Bradford v. Workers’ Comp. Comm’r, 185 W. Va. 434, 408 S.E.2d 13 (1991) that, “[t]he
appropriate test under W.Va. Code § 23-4-10(b) is not whether the employee’s death was
the result of the occupational injury or disease exclusively, but whether the injury or disease
contributed to any material degree to the death.”

Here, the Board determined that Ms. Hamilton failed to establish with medical
evidence that Mr. Hamilton’s TBI materially contributed to his death. The Board noted that
PA Hildreth opined that Mr. Hamilton’s TBI could have delayed the discovery of the mass.
However, the Board further found that there was no evidence that the mass was
symptomatic before it was discovered, and thus, no evidence to support a finding that Mr.
Hamilton’s TBI delayed the discovery of the mass.

Upon review, we conclude that the Board was not clearly wrong in finding that Ms.
Hamilton failed to establish with medical evidence that Mr. Hamilton’s TBI materially
contributed to his death. “[A] reviewing court may not overturn a finding simply because
it would have decided the case differently, and it must affirm a finding if the [lower
tribunal’s] account of the evidence is plausible in light of the record viewed in its entirety.”
Syl. Pt. 5, W. Va. State Police v. Walker, 246 W. Va. 77, 866 S.E.2d 142 (2021), citing Syl.

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Pt. 1, in part, In Re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996). Further, our
review is deferential to the Board. West Virginia Code § 23-5-12a(b) sets forth the same
standard of review as was previously required of the Board when it reviewed decisions by
the Office of Judges per West Virginia Code § 23-5-12 before the 2021 statutory
amendments became effective. In considering West Virginia Code § 23-5-12, the Supreme
Court of Appeals of West Virginia stated that the Board was required to accord deference
to the decisions by the Office of Judges. See Conley v. Workers’ Comp. Div., 199 W. Va.
196, 203, 483 S.E.2d 542, 549 (1997).

Accordingly, we affirm the Board’s October 30, 2023, order.

Affirmed.

ISSUED: July 1, 2024

CONCURRED IN BY:

Judge Charles O. Lorensen
Judge Daniel W. Greear

Chief Judge Thomas E. Scarr, not participating

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