UNION CARBIDE CORPORATION v. DEARIEN (2025)

Petitioner, Union Carbide Corporation, a subsidiary of the Dow Chemical Company (“Carbide”), appeals the May 30, 2024, order of the West Virginia Workers’ Compensation Board of Review (“Board”) granting fatal dependent's benefits (“dependent benefits”) to Thomas Dearien, husband of Christina Dearien (“decedent”). On appeal, Carbide argues that the Board erred by granting Mr. Dearien such benefits, as his claim was barred by the West Virginia Workers’ Compensation Office of Judges’ (“OOJ”) final order affirming the rejection of the decedent's claim for occupational disease benefits made during her lifetime. Further, Carbide contends that the Board's final order was clearly wrong in view of the reliable, probative, and substantial evidence on the record. After our review of the record and applicable law, we affirm the Board's May 30, 2024, order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 11, 2019, the decedent filed an application for workers’ compensation benefits (“living claim”) against Carbide, claiming that she was diagnosed with colon cancer, an occupational disease, while employed by Carbide.¹ A review of the decedent's medical records was conducted, in relation to her living claim, by Mohammed Ranavaya, M.D. Dr. Ranavaya concluded that no credible or reliable evidence existed to establish that the decedent's diagnosis of colon cancer was causally related to her employment at Carbide. Based upon the opinion of Dr. Ranavaya, the claim administrator (“CA”) denied the decedent's living claim by order entered on June 5, 2020. The decedent timely filed a protest of this determination to the OOJ. On August 24, 2021, counsel for the decedent submitted a request to withdraw the protest due to the decedent's death on June 2, 2021. By Order dated August 27, 2021, the OOJ dismissed the protest based upon the motion to withdraw.²

On September 10, 2021, Mr. Dearien filed an application for dependent benefits, pursuant to West Virginia Code § 23-4-10 (2010), and argued that the decedent “developed colorectal cancer as a result of her exposure to toxic chemicals” while employed by Carbide.³ On September 24, 2021, the CA rejected Mr. Dearien's application for dependent benefits based on Dr. Ranavaya's prior report, which found no direct causal connection between the decedent's diagnosis of colon cancer and her employment with Carbide. Further, the CA concluded that the dependent's claim was barred by the principle of collateral estoppel. According to the CA, the OOJ's August 27, 2021, final order dismissing the protest of the decedent's living claim constituted a final resolution to the claim at issue.⁴ Mr. Dearien timely protested the CA's rejection of his application for dependent benefits.

As part of his protest, Mr. Dearien submitted the medical opinions of Janelle Arthur, Ph.D.; Sean DiCristofaro, M.D.; Timur S. Durrani, M.D.; and Gene Finley, M.D., all of whom opined that the decedent's colon cancer was more likely than not causally connected to her employment at Carbide. Conversely, in support of the CA's rejection decision, Carbide submitted the medical opinions of Dr. Ranavaya; Eric Christenson, M.D.; Dominik Alexander, Ph.D.; and Jennifer Sahmel, Ph.D., all of whom opined that the decedent's colon cancer was not causally connected to her employment at Carbide.

On May 30, 2024, the Board reversed the CA's rejection of Mr. Dearien's application for dependent benefits and found Mr. Dearien to be entitled to an award of such benefits. The Board based its conclusion on the evidence presented that the decedent's cancer was, more likely than not, causally related to her occupational exposures. The Board examined the extensive medical records and reports of medical experts and determined that both parties offered qualified and credible expert opinions to such a degree that an equal amount of evidentiary weight existed. Therefore, pursuant to West Virginia Code § 23-4-1g (2003), the Board adopted the resolution most consistent with the claimant's position.⁵ In regard to Carbide's argument that Mr. Dearien's dependent claim was barred pursuant to the doctrine of collateral estoppel, the Board determined the claim was not barred based upon the Supreme Court of Appeals of West Virginia's (“SCAWV”) decision in Staubs v. State Workmen's Compensation Comm'r, 153 W. Va. 337, 168 S.E.2d 730 (1969). This appeal followed.

II. STANDARD OF REVIEW

Our standard of review is set forth in W. Va. 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.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm'n, 250 W. Va. 510, 905 S.E.2d 528 (2024). With this standard in mind, we now turn to Carbide's arguments.

III. DISCUSSION

On appeal, Carbide argues that the doctrine of collateral estoppel bars Mr. Dearien's claim for dependent benefits as the CA's June 5, 2020, decision rejecting the decedent's living claim for occupational disease benefits was a final resolution of the issue of a causal connection between the decedent's diagnosis of colon cancer and her employment at Carbide. We disagree.

Carbide's argument regarding collateral estoppel is two-fold. First, Carbide argues that the Board erred in relying upon Staubs for denying the applicability of collateral estoppel. We agree. The SCAWV's decision in Staubs was based upon the doctrine of res judicata, not collateral estoppel. See generally Staubs, 153 W. Va. 337, 348-349, 168 S.E.2d 730, 736 (1969) (“As a ground for reversal the employer contends that the instant claim of the widow of Fred T. Staubs is barred by the doctrine of res judicata ․”). Collateral estoppel and res judicata are two separate doctrines of claim preclusion recognized in West Virginia.

In State v. Miller, 194 W. Va. 3, 9, 459 S.E.2d 114, 120 (1995), the SCAWV spoke particularly as to the differences between res judicata and collateral estoppel. Specifically, the Miller Court found that

the doctrines of res judicata, or claim preclusion, and collateral estoppel, or issue preclusion, are closely related. Res judicata generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action. A claim is barred by res judicata when the prior action involves identical claims and the same parties or their privies. Collateral estoppel, however, does not always require that the parties be the same. Instead, collateral estoppel requires identical issues raised in successive proceedings and requires a determination of the issues by a valid judgment to which such determination was essential to the judgment.

Id. at 9, 459 S.E.2d at 120 (1995) (internal citations omitted). Res judicata and collateral estoppel are different legal doctrines – the inapplicability of one does not preclude the applicability of the other. See id. Thus, while Staubs may eliminate the applicability of res judicata in the underlying case, it is not dispositive of the applicability of collateral estoppel to Mr. Dearien's claim for dependent benefits. Accordingly, a determination as to whether collateral estoppel precludes Mr. Dearien's dependent claims is necessary.

Carbide argues that the CA's June 5, 2020, decision is a final order on the merits, which would invoke the application of collateral estoppel and preclude the dependent benefit claim brought by Mr. Dearien. While, as noted above, the Board's reliance on Staubs was misplaced, we find that the Board did not err in its ultimate determination that Mr. Dearien's dependent claim was not barred by collateral estoppel. “[T]he doctrine of collateral estoppel, or issue preclusion, ‘applies to issues that were actually litigated in an earlier suit even though the causes of action are different.’ ” Corley v. Eastern Associated Coal Corp., No. 1:07CV114, 2009 WL 723120 at *5 (N.D.W. Va. March 18, 2009); citing Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 298-299, 359 S.E.2d 124, 131-132 (1987).

The doctrines of res judicata and collateral estoppel were developed in the context of judicial proceedings, but may be applied to administrative actions as well. Thus, the findings and conclusions of an administrative agency may be binding upon the parties in a subsequent proceeding if the agency that rendered the decision acted in a judicial capacity and resolved disputed issues of fact which the parties had an opportunity to litigate.

Miller, 194 W. Va. at 9, 459 S.E.2d at 120 (internal citations omitted); see Liller v. West Virginia Human Rights Com'n, 180 W. Va. 433, 440, 376 S.E.2d 639, 646 (1988);⁶ Vest v. Board of Educ. of County of Nicholas, 193 W. Va. 222, 455 S.E.2d 781 (1995).⁷

Collateral estoppel will bar a claim if four conditions are met: (1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

Miller, 194 W. Va. at 9, 459 S.E.2d at 120. Carbide argues that the CA's June 5, 2020, order constitutes a final order on the merits and, thus, precludes Mr. Dearien's claims related to the decedent's diagnosis of colon cancer and the decedent's employment. We disagree. The CA's June 5, 2020, decision was not a quasi-judicial determination of an administrative agency. The CA's decision lacks the formalities, authority, and procedures substantially similar to those used in a court of law, as required under Miller and Liller.

In Ruble v. Rust-Oleum, 250 W. Va. 324, 902 S.E.2d 873 (2024), the SCAWV recently discussed the application of collateral estoppel in the context of whether an administrative decision in a workers’ compensation case (involving third parties) could be applied to preclude litigation of the same claim in circuit court (against the third parties), to which the Court ruled it could not. While this factual scenario is different from the particular facts of the underlying case, we acknowledge that a number of the Ruble Court's findings are applicable to this case. Specifically, the Ruble Court concluded that “the workers’ compensation process involve[s] legal standards and procedural rules that [a]re substantially different from those in a courtroom, ․” Id. at 326, 902 S.E.2d at 875. The Ruble Court further concluded that workers’ compensation administrative procedures were not an adequate substitute for judicial procedures in circuit court. The Ruble Court determined that

administrative procedures used in West Virginia workers’ compensation proceedings made numerous accommodations to economy and celerity that are directly at odds with procedures in the circuit courts. West Virginia Code § 23-1-15 (2022) specifies that the workers’ compensation process ‘is not bound by the usual common-law or statutory rules of evidence[.]

Id. at 329, 902 S.E.2d at 878. Further, we recognize that the SCAWV has long held that a CA serves as an administrative factfinder who is not bound by the traditional rules operative to an adversary system. See generally Meadows v. Lewis, 172 W. Va. 457, 469, 307 S.E.2d 625, 638 (1983). It is important to note that CAs, in the context of workers’ compensation, are insurance providers, not state administrative agencies. Based upon such facts and SCAWV precedent, we find that any determination of a CA is not a quasi-judicial determination to which the doctrine of collateral estoppel would apply.

Additionally, Carbide's argument that the CA's order is final and on the merits relies upon an alternative assertion that the August 27, 2021, order of the OOJ, which dismissed the decedent's protest to the CA's June 5, 2020, order, invokes application of collateral estoppel. While the August 27, 2021, order of the OOJ was an order of a then quasi-judicial administrative agency,⁸ effectively sitting as a trial court, to which collateral estoppel could apply, Carbide mischaracterizes the OOJ's order as a final order on the merits. The OOJ's August 27, 2021, order did not address the merits of the case and did not affirm the CA's determination. Rather, the August 27, 2021, order simply, in three sentences, dismissed the decedent's protest based upon her motion to withdraw her living claim given her death. At no point in the August 27, 2021, order did the OOJ address the issue of compensability, nor does that order address the issue of causation between the chemicals to which decedent was exposed while employed at Carbide and her diagnosis of colon cancer. We further note that when the OOJ was operational, the OOJ was the first level of the quasi-judicial administrative agencies in the workers’ compensation administrative appeals process as the OOJ was not required to give deference to the CA determinations. See West Virginia Code § 23-5-9 (2021).⁹ In contrast, in an appeal of an OOJ order to the Board, the Board was required to give deference to fact-finding and determinations made by the OOJ. See West Virginia Code § 23-5-12 (2021).¹⁰

The OOJ's dismissal of the decedent's living claim is analogous to a voluntary dismissal under Rule 41(a) of the Rules of Civil Procedure.¹¹ Under Rule 41(a) a voluntary dismissal is a dismissal without prejudice unless stated otherwise, which allows for a re-filing of the case without res judicata or collateral estoppel attaching to the issue or claim. Here, we find that the OOJ's August 27, 2021, dismissal order was a voluntary dismissal order, prior to any substantive rulings, and, thus, does not constitute a final adjudication on the merits. Therefore, we find that under the limited facts and circumstances of this case, neither the August 27, 2021, order of the OOJ, nor the CA's June 5, 2020, order satisfies the doctrine of collateral estoppel, as neither were a final adjudication on the merits of the case. Accordingly, we find no error in the Board's May 30, 2024, decision as to the non-applicability of collateral estopped to bar Mr. Dearien's dependent benefit claim.

Carbide further argues that the Board's May 30, 2024, decision was clearly wrong in view of the reliable, probative, and substantial evidence on the record. Again, we disagree. Carbide's argument is essentially a request for this Court to find the medical opinions submitted by Carbide be given more weight than those submitted by Mr. Dearien. Such a request is contrary to the credibility determinations made by the Board below and the express provisions of West Virginia Code § 23-4-1g,¹² which requires the Board to assess the credibility, materiality, and reliability that the evidence possesses and directs the Board that if “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.” See also Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995) (“We cannot overlook the role that credibility [plays] in factual determinations, a matter reserved exclusively for the trier of fact.”)

The SCAWV has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones[,] which presume an agency's actions are valid as long as the decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). Here, the Board found that credible and reliable medical evidence was submitted before the Board below, which was supported by both parties’ arguments regarding the causal connection of the decedent's colon cancer diagnosis and her employment at Carbide. Further, the Board found that the medical opinions offered by Mr. Dearien and Carbide were equal in evidentiary weight and, therefore, the Board was required to adopt Mr. Dearien's position in accordance with West Virginia Code § 23-4-1g. With the deferential standard of review in mind, we cannot conclude that the Board was clearly wrong in its weighing of the evidence in the record or in finding that collateral estoppel does not operate to preclude Mr. Dearien's dependent benefit claims.

IV. CONCLUSION

For the foregoing reasons, we find the Board did not err in reversing the CA's determination and granting Mr. Dearien dependent benefits. Accordingly, the Board's May 30, 2024, order is hereby affirmed.

Affirmed.

I wholeheartedly concur with the majority's opinion and its application of the doctrine of collateral estoppel espoused in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In the workers’ compensation system, a “claims administrator” is an insurance company employee who, whilst ostensibly applying West Virginia's workers’ compensation laws and regulations to rule on a claimant's claim, is also focused on protecting the interests of the insurance company and, indirectly, those of the claimant's employer. The majority opinion deftly notes that a claims administrator “is not bound by the traditional rules operative to an adversary system” and does not issue decisions remotely on par with “a quasi-judicial determination of an administrative agency.” ––– W. Va. at ––––, ––– S.E.2d at –––– (Slip. Op. at 9). Hence, to put the majority's ruling succinctly: a ruling, assessment, decision, or any other pronouncement by a claims administrator cannot form the basis for collateral estoppel under Miller.

This Court recognizes that its authority is limited to what is expressly provided by the Legislature. See W. Va. Code § 51-11-4 (2024). In line with the Legislature's limitations, the majority opinion constrains its application of Miller and, upon establishing that Miller’s collateral estoppel rule does not apply to claims examiner decisions and that the lower tribunal's decision was correct, it ends its analysis.

What leaves me troubled, however, is that this is the second time in a year that collateral estoppel has arisen at the appellate level in the context of workers’ compensation rulings. It also is the second time in a year that application of the collateral estoppel doctrine has been rejected. In our ruling today, we rejected an employer's attempt to use an adverse claims administrator's ruling against a living claimant to later preclude the claim of a dependent seeking benefits for the work-related death of that claimant. In Ruble v. Rust-Oleum Corporation, 250 W. Va. 324, 902 S.E.2d 873 (2024), the Supreme Court of Appeals of West Virginia (“SCAWV”) found, under the collateral estoppel guidelines of Miller, that a tortfeasor in a lawsuit could not use an adverse ruling against a workers’ compensation claimant to subsequently preclude the lawsuit by the claimant against the tortfeasor for injuries the claimant sustained on the job. The SCAWV found that because a workers’ compensation claim uses legal standards and procedural rules that are “substantially different from those in a courtroom,” a final ruling by a workers’ compensation judge does not have preclusive effect in a lawsuit. Id. at 326, 902 S.E.2d at 875.

I write separately to underscore that, in cases like the one at bar, where there has been an adverse ruling against a living claimant, that adverse ruling has no preclusive effect on a subsequent claim for death benefits by the deceased claimant's dependents. West Virginia law is clear: an adverse workers’ compensation decision against a living claimant has no collateral estoppel effect, and no res judicata effect, on a later claim for dependent's benefits arising from the claimant's work-related death. None. There are two independent and separate rights of recovery under the Workers’ Compensation Act, both based on the same injury or disease: one for the worker during his or her lifetime, and another for the worker's dependents after his or her death. The parties in the claims are different, the parties are not in privity, and their statutory rights are different. Put simply, the actions of an injured worker who litigates a workers’ compensation claim while alive will have no preclusive effect on the rights of the worker's dependent survivors, should the worker die as a result of his or her work-related injury or disease.

This is not just my opinion. For eight-and-a-half decades, the Supreme Court of Appeals of West Virginia (“SCAWV”) has found that a claim for workers’ compensation disability benefits by a living claimant, and a claim for death benefits by a deceased claimant's dependents, “are not the same, nor is a claim for the latter a derivative one.” Gibson v. State Comp. Com'r, 127 W. Va. 97, 99, 31 S.E.2d 555, 556 (1944).

Beginning with Lester v. State Compensation Commissioner, 123 W. Va. 516, 16 S.E.2d 920 (1941), the SCAWV recognized that benefits for living claimants and benefits for a claimant's decedents are treated separately by the Workers’ Compensation Act. Regarding living claimants, West Virginia Code § 23-4-6(l) (2005) provides (with emphasis added) that “[c]ompensation, either temporary total or permanent partial, ․ shall be payable only to the injured employee and the right to the compensation shall not vest in his or her estate[.]” The SCAWV construed this language to mean that when a claimant dies “from ailments not connected with his injury, prior to the full payment of the award,” then the deceased claimant's dependents are not entitled to any portion of the award that had not accrued at the time of the claimant's death.¹ Lester, 123 W. Va. at 516, 16 S.E.2d at 920, Syl. Pt. 1. The Lester Court refused to allow the widow of the deceased claimant to collect the total balance of an award made to the claimant during his lifetime, and it limited her recovery to that portion of the award which had accrued prior to his death.

Gibson v. State Compensation Commissioner built upon Lester, finding Lester established the principle that

any rights that may attach to an employee's claim for disability benefits are terminable upon his death when, eo instante, the right of his dependents to death benefits attaches. The claim for the latter being distinct from that of the employee himself, jurisdiction exists in the commissioner to determine what, if any, death benefits [a dependent] is entitled to receive.

Gibson, 127 W. Va. at 99, 31 S.E.2d at 556. Moreover, the Gibson Court declared there was simply no “privity between the two types of claims.” Id. The Gibson Court noted that the rights of the dependents of a deceased worker arise in a different part of the Workers’ Compensation Act. West Virginia Code § 23-4-10 (2010) dictates that if a worker suffers a personal injury, disease, or pneumoconiosis from his or her job, and that injury/disease/pneumoconiosis results in the worker's death, then upon that death an entitlement of the worker's dependents to their own benefits is triggered. Examining the 1944 version of this statute, the SCAWV succinctly concluded that “[a] claim for death benefits, provided for by Code, 23-4-10, is separate and distinct from an injured employee's claim for disability benefits.” Gibson, 127 W. Va. at 97, 31 S.E.2d at 555, Syl. Pt. 1.

In the decades since, it has been an unwavering rule of law in West Virginia that a dependent's claim for death benefits is treated in a separate and distinct manner from the claim of the injured worker.² “A necessary corollary to this rule is that a dependent's right to benefits do not come into full existence until the employee's death.” Hubbard v. SWCC & Pageton Coal Co., 170 W. Va. 572, 576, 295 S.E.2d 659, 663 (1981).

But most importantly, a claim by a deceased worker's dependents “is not derived from or dependent upon the outcome of the claim filed” by the worker while he or she was alive. Staubs v. State Workmen's Compensation Commissioner, 153 W. Va. 337, 348, 168 S.E.2d 730, 736 (1969). As the majority opinion notes, the Staubs Court applied the doctrine of res judicata to find that a woman could pursue a claim for dependent's benefits for her husband's death, despite the husband's claim being disposed of by an adverse order denying him compensation. Id.³

But the same result is reached by strictly applying the terms of the collateral estoppel/issue preclusion doctrine found in Miller. Syllabus Point 1 of Miller requires proof of each of these four conditions:

(1) The issue previously decided is identical to the one presented in the action in question; (2) there is a final adjudication on the merits of the prior action; (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.

Miller, 194 W. Va. at 6, 459 S.E.2d at 117, Syl. Pt. 1.⁴ A dependent's claim for benefits is protected from the rulings made in a living worker's claim by the need to satisfy the four conditions set forth in Miller.

Regarding the first condition in Miller, the issues decided in a living claimant's proceeding are not identical to the issues presented in a claim by a deceased worker's beneficiaries. Primarily, whether a worker was injured as a result of employment requires different proof than whether a worker died as a result of employment, particularly in the context of occupational diseases or pneumoconioses.⁵ Second, there can never be “a final adjudication on the merits” of a dependent's rights in a living worker's proceeding because, statutorily, a dependent cannot file a claim until after the death of the worker. A worker's claim for benefits belongs solely to the worker, the worker chooses whether and how to pursue the claim, and the claim ceases to exist at his or her death, while a dependent's right to benefits does not exist until the worker dies. While a ruling may be “final” as to the worker during his lifetime, that ruling has no bearing on the worker's innocent dependents who are not a part of the worker's living claim.

The third and fourth factors of Miller are even more conclusive. They require that “the party against whom the doctrine is invoked was a party or in privity with a party to a prior action” and “had a full and fair opportunity to litigate the issue in the prior action.” Eighty-plus years of case law from the SCAWV conclusively shows that a dependent is not a party to a living claimant's workers’ compensation proceeding: West Virginia Code § 23-4-6(l) establishes that disability benefits belong solely to a living, injured worker, while the rights of that worker's dependents do not arise under West Virginia Code § 23-4-10 until after the worker dies. Moreover, the parties are not in privity; as the Miller Court said, privity requires “the sharing of the same legal right by the parties[.]” Miller, 194 W. Va. at 13, 459 S.E.2d at 124. The legal rights and benefits available by statute to living claimants and to their dependents are wholly separate and distinct. See Gibson, 127 W. Va. at 99, 31 S.E.2d at 556 (finding the “concept of privity between the two types of claims ․ negatived” by the structure of the Workers’ Compensation Act). And, of course, a dependent has absolutely no right to participate in a living worker's claim proceeding. Under Miller, dependents cannot be bound by a result reached in a proceeding to which they were not, and could not, be parties. Put simply, under the fourth condition of Miller, there can never be a finding the dependent had any opportunity to litigate an issue to finality, let alone “a fair chance to contest the earlier litigation.” Miller, 194 W. Va. at 13, n.17, 459 S.E.2d at 124, n.17.

This analysis is applied by courts nationwide. Professor Arthur Larson, in his seminal treatise first published in 1952, summarized the rule thusly:

The dependent's right to death benefits is an independent right derived from statute, not from the rights of the decedent. Accordingly, death benefits are not affected by compromises or releases executed by decedent, or by an adverse holding on decedent's claim, or by claimant's failure to claim within the statutory period.

Lex K. Larson, Thomas A. Robinson, Larson's Workers’ Compensation Law, § 98 at 98-1 (2024). Hence, the “settlement, compromise, or release by the deceased of his or her rights under the [Workers’ Compensation] Act cannot bar the statutory rights of any dependents, since these rights are independently created by statute.” Id., § 98.01[2] at 98-4. Moreover,

The most striking consequence of the independent status of dependency rights is the rule ․ that an adverse decision on the merits of a claim by the employee while he or she was alive does not bar a dependency claim ․ since the parties and rights involved are different, and since the dependent is not in privity with the injured employee as to the rights asserted․

A fortiori, the defeat of the employee's claim on procedural grounds such as failure to file a timely claim, or the employee's complete failure ever to make claim during his or her lifetime, is not a bar to the rights of dependents.

Id. at 98.01[4] at 98-5 to - 7.⁶

The SCAWV recently said that the Workers’ Compensation Act was supposed to create a speedy process to provide compensation for work-related injuries and deaths “sufficient to keep bread on the table and the wolves away from the door.” Ruble, 250 W. Va. at 331, 902 S.E.2d at 880. A neighboring court said workers’ compensation benefits help society “car[e] for the helpless human wreckage found in the trail of modern industry.” Liggett & Meyers Tobacco Co. v. Goslin, 160 A. 804, 807 (Md. 1932). West Virginia's law is absolutely clear that neither res judicata nor collateral estoppel may be interposed to delay or deny benefits to the dependents of a worker who has died as a result of an on-the-job injury, disease, or pneumoconiosis.

I applaud the majority opinion's decision to find Mr. Dearien entitled – speedily and efficiently – to dependent's benefits for the death of his wife from a disease which numerous experts opined was caused by her exposure to chemicals in the course of her work for Union Carbide. Accordingly, I concur.

FOOTNOTES

1.   The decedent's living claim was assigned claim number 2019020262-OD. While employed at Carbide, from 2006 to 2018, decedent worked in various job positions including a weighmaster, operator, and scheduling technologist.

2.   In its Order Dismissing Protest, the OOJ found that upon consideration of the decedent's motion to withdraw the protest, the motion was granted and the protest was dismissed.

3.   Mr. Dearien's claim for dependent benefits was assigned claim number 2022005028-OD.

4.   In its September 24, 2021, decision, the CA referenced the decedent's living claim and the CA's rejection of such claim on June 5, 2020. The CA stated that the June 5, 2020, decisionwas based upon the opinion of Dr. Ranavaya ․ A protest was filed by the decedent to the June 5, 2020, order. The protest was withdrawn on August 24, 2021, and a final order dismissing the protest was entered by the [OOJ] on August 25, 2021. As a consequence, the rejection order of June 5, 2020, constitutes the final resolution of the issue of a causal connection between the diagnosis of colon cancer and decedent's employment.

5.   In its May 30, 2024, order, the Board concluded thatThe evidence regarding a causal link between the chemicals [the decedent] was exposed to at [Carbide] and the development of colorectal cancer is mixed. The parties cite studies, articles, and medical evidence supporting their position. The parties’ experts have equally impressive credentials, experience, and expertise. It cannot be found that one side's panel of experts is notably more qualified or more credible than the other. Based upon the evidence of record, it is found that an equal amount of evidentiary weight exists, and pursuant to [West Virginia Code] § 23-4-1g, the resolution that is most consistent with claimant's position must be adopted. Accordingly, the weight of the evidence establishes the following: 1) a causal connection exists between the conditions under which [the decedent's] work was performed and her diagnosis of colorectal cancer; 2) her cancer followed as a natural incident of her work; 3) her cancer diagnosis can be fairly traced to her employment at [Carbide]; 4) the intensity and frequency of her chemical exposures at [Carbide] were unique to her employment, and her cancer diagnosis did not come from a hazard to which workmen would have been equally exposed outside of [Carbide]; 5) the occupational exposures which resulted in her colorectal cancer diagnosis were incidental to the nature of the chemical manufacturing and loading business and were not independent of the employer and employee relationship; and 6) her cancer diagnosis had its origin in a risk connected with her employment at [Carbide] and flowed as a natural consequence of her occupational exposures. [The decedent's] colorectal center was more likely than not causally related to her occupational exposures at [Carbide]. [The decedent] died as a result of colorectal cancer. Therefore, [Mr. Dearien] is entitled to [dependent's] benefits ․ The weight of the evidence establishes that [the decedent's] occupational exposures materially contributed to her death from colorectal cancer.

6.   In Liller, the SCAWV notedWe have recognized that these doctrines can be applied to quasi-judicial determinations of administrative agencies. In order for preclusion to apply, the decision must be rendered pursuant to the agency's adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court of law.Id. at 440, 376 S.E.2d at 646.

7.   In Vest, the SCAWV heldFor issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies, at least where there is no statutory authority directing otherwise, the prior decision must be rendered pursuant to the agency's adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court. In addition, the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel.Syl. Pt. 2, Id. at 223, 455 S.E.2d at 782.

8.   We note that the OOJ was “terminated” by the West Virginia Legislature effective October 1, 2022, and the Board assumed the OOJ's role as the initial arbiter of protests of workers’ compensation orders on July 1, 2022. See West Virginia Code §§ 23-5-8a, -8b, - 10, and -10a (2022).

9.   See West Virginia Code § 23-5-9(h) (2021), which states “[t]his section is of no force and effect after June 30, 2022.”

10.   See West Virginia Code § 23-5-12(g) (2021), which states “[t]his section is of no force and effect after June 30, 2022.”

11.   Rule 41(a) of the West Virginia Rules of Civil Procedure provides, in pertinent part, that(a) Voluntary Dismissal ․ (2) By Court Order; Effect ․ an action may be dismissed at the plaintiff's request only by court order on terms that the court considers proper ․ Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

12.   West Virginia Code § 23-4-1g(a) provides, in pertinent part, that[t]he process of weighing evidence shall include, but not be limited to, an assessment of the relevance, credibility, materiality[,] and reliability that the evidence possesses in the context of the issue presented. Under no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply because it is reliable and is most favorable to a party's interests or position. If, 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.

1.   The Workers’ Compensation Act does, however, provide that any benefits that are accrued and payable to a deceased claimant must be paid to the claimant's dependents. The Act provides “that any unpaid compensation which would have been paid or payable to the employee up to the time of his or her death, if he or she had lived, shall be paid to the dependents of the injured employee if there are any dependents at the time of death.” W. Va. Code § 23-4-6(l). See also Syl., Hogsten v. Comp. Comm'r, 124 W. Va. 153, 19 S.E.2d 439 (1942) (“Where a workman, after having been awarded compensation under Code, 23-4-6, dies from a separate and subsequent compensable injury, his dependents are entitled to receive such part of said compensation as was accrued and unpaid at the time of the workman's death.”).

2.   Johnson v. W. Va. Off. of Ins. Com'r, 226 W. Va. 650, 654, 704 S.E.2d 650, 654 (2010) (per curiam) (“As long recognized, the right to workers’ compensation benefits is wholly statutory. Syl. pt. 2, in part, Dunlap v. State Compensation Director, 149 W. Va. 266, 140 S.E.2d 448 (1965). An important aspect of that maxim relevant to this claim was previously observed by this Court in ․ syllabus point 1 of [Gibson] which states: ‘A claim for death benefits, provided for by Code, 23–4–10, is separate and distinct from an injured employee's claim for disability benefits.’ ”); Tanner v. Workers’ Comp. Com'r, 176 W. Va. 427, 429, 345 S.E.2d 29, 31–32 (1986) (“The Commissioner's argument, however, ignores the basic legal principle that a claim for dependents’ benefits under W. Va. Code, 23–4–10, is separate and distinct from an injured employee's claim for disability benefits.”); Syl. Pt. 2, Hubbard v. SWCC & Pageton Coal Co., 170 W. Va. 572, 295 S.E.2d 659 (1981) (“A dependent's claim for death benefits is separate and distinct from the claim of the injured employee.”); Sizemore v. State Workmen's Comp. Comm'r, 159 W. Va. 100, 104, 219 S.E.2d 912, 914 (1975) (“[T]his Court also has been committed to the premise that a dependent's rights and claims are unique and separate from those of an injured employee.”); Staubs v. Workmen's Comp. Comm'r, 153 W. Va. 337, 348, 168 S.E.2d 730, 736 (1969) (“[T]he employer contends that the instant claim of the widow of Fred T. Staubs is barred ․ because of the denial by the state compensation commissioner ․ of a claim for compensation filed by Fred T. Staubs in his lifetime ․ There is no merit in that contention. His claim for compensation and the claim of the widow for benefits for herself and her children as his dependents are separate and distinct claims and her claim is not derived from or dependent upon the outcome of the claim filed by her husband.”); Ashworth v. Workmen's Comp. Comm'r, 150 W. Va. 537, 543, 148 S.E.2d 364, 368 (1966) (“[C]laims, under section [23-4-]10, are separate and distinct from an injured employee's claim for disability benefits under section [23-4-]6.”); Terry v. State Comp. Comm'r, 147 W. Va. 529, 534, 129 S.E.2d 529, 532 (1963) (“It is true that the claim of the widow in this proceeding is separate and distinct from the claim of her husband.”); Jones v. State Comp. Comm'r, 128 W. Va. 737, 744, 38 S.E.2d 376, 380 (1946) (“[T]he claim of a widow and dependents is a separate and distinct claim from that made by an employee in his lifetime.”).

3.   The Staubs Court applied res judicata in this manner:To constitute res judicata there must be concurrence of these four conditions: Identity in the thing sued for; identity of the cause of action; identity of the persons and the parties to the proceeding; and identity of the quality in the persons for or against whom the claim is made. The identity in the thing sued for; the identity of the cause of action; and the identity of the person and the parties to the proceeding are not present with respect to the claim of the widow of Fred T. Staubs for benefits as his dependent and his claim for disability benefits and the absence of these identities with respect to both claims renders the doctrine of res judicata inapplicable to the present proceeding.Staubs, 153 W. Va. at 349, 168 S.E.2d at 736 (citations omitted).

4.   The courts of Maryland note that “[t]he doctrines of res judicata and collateral estoppel are two branches of a doctrine known as estoppel by judgment.” Weatherly v. Great Coastal Exp. Co., 883 A.2d 924, 932 (Md. Ct. Spec. App. 2005). Both doctrines have the same function: “to avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Colandrea v. Wilde Lake Cmty. Ass'n, 761 A.2d 899, 907 (Md. 2000). But the significant difference between the doctrines is that res judicata “bars subsequent litigation not only of what was decided in the original litigation of the claim but also of what could have been decided in that original litigation.” Weatherly, 883 A.2d at 933.

5.   To be clear, for purposes of administrative efficiency or judicial notice, if a living claimant is viewed by medical experts while alive and establishes in a workers’ compensation proceeding the existence of an occupational injury, disease, or pneumoconiosis, then the beneficiary of dependent's benefits generally does not need to reestablish the existence of the injury, disease, or pneumoconiosis. The only burden of the dependent would be to establish that the claimant's death was a result of the preexisting, established condition. See Lex K. Larson, Thomas A. Robinson, Larson's Workers’ Compensation Law, § 98.01[4] at 98-5 (2024) (“[T]he dependent need only prove the death, the causal connection, and the dependency status.”).

6.   See Syl. Pt. 2, Gibson, 127 W. Va. at 97, 31 S.E.2d at 556 (“Where an employee, injured in the course of his employment, is denied compensation during his lifetime on the ground that disability is not the result of said injury, the State Compensation Commissioner has jurisdiction to consider a claim, timely filed, for death benefits after the death of the employee and may determine whether the personal injury received by the employee caused his death.”).

GREEAR, Judge:

JUDGE WHITE concurs and reserves the right to file a separate opinion.