Union Carbide Corporation, a subsidiary of The Dow Chemical Company v. Christina Dearien (Decedent) and Thomas Dearien (Dependent)

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

Spring 2025 Term

June 4, 2025

_____________________ released at 3:00 p.m.

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

No. 24-ICA-269 OF WEST VIRGINIA

_____________________

UNION CARBIDE CORPORATION,

a subsidiary of THE DOW CHEMICAL COMPANY,

Employer Below, Petitioner,

v.

CHRISTINA DEARIEN (Decedent) and THOMAS DEARIEN (Dependent),

Claimant Below, Respondent.

___________________________________________________________

Appeal from the West Virginia Workers’ Compensation

Board of Review

JCN: 2022005028

AFFIRMED

_________________________________________________________

Submitted: April 30, 2025

Filed: June 4, 2025

Timothy E. Huffman, Esq. R. Dean Hartley, Esq.

Jackson Kelly PLLC Hartley Law Group, PLLC

Charleston, West Virginia Wheeling, West Virginia

Counsel for Petitioner Counsel for Respondent

JUDGE GREEAR delivered the Opinion of the Court.

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

GREEAR, Judge:

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

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.

1

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

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.

2

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

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,

decision

was 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.

3

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

5

In its May 30, 2024, order, the Board concluded that

The 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.

4

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.

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.

5

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

6

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).

7

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

6

In Liller, the SCAWV noted

We 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 held

For 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

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

9

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

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).

10

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)

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

11

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

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

12

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

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.

13

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.

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