                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              February 4, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
ELMER J. BLAIR,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-0537	 (BOR Appeal No. 2044972)
                   (Claim No. 2006025234)

MASON MINING, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Elmer J. Blair, by Samuel Hanna, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Mason Mining, LLC, by H. Dill Battle III,
its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 25, 2011, in
which the Board affirmed an August 6, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 1, 2007,
decision granting Mr. Blair a 3% permanent partial disability award. The Court has carefully
reviewed the records, written arguments, and appendices contained in the briefs, and the case is
mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Blair was employed as an electrician with Mason Mining when he injured his lower
back while lifting a tool bag on December 16, 2005. On January 25, 2006, the claim was held
compensable for lumbar sprain/strain. Mr. Blair has undergone three independent medical
evaluations to determine the amount of permanent impairment resulting from the compensable
injury. On December 6, 2006, Dr. Mir found that Mr. Blair had 13% whole person impairment
after placing him in Category III of West Virginia Code of State Rules § 85-20-Table C (2006).
Dr. Mir then recommended a 3% permanent partial disability award after apportioning for a prior
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10% permanent partial disability award. On October 13, 2009, Dr. Guberman found that Mr.
Blair had 15% whole person impairment. He then apportioned for the prior 10% permanent
partial disability award and found that Mr. Blair had 5% whole person impairment as a result of
the compensable injury. Dr. Guberman also placed Mr. Blair in Category III of West Virginia
Code of State Rules § 85-20-Table C, and adjusted his amount of whole person impairment to
10% because 5% does not fall within the 10-13% whole person impairment range mandated by
Category III of West Virginia Code of State Rules § 85-20-Table C. Dr. Guberman then
recommended an additional 7% permanent partial disability award after noting that Mr. Blair had
already received a 3% permanent partial disability award for the compensable injury. On March
9, 2010, Dr. Bachwitt performed an independent medical evaluation and placed Mr. Blair in
Category II of West Virginia Code of State Rules § 85-20-Table C. He then found that Mr. Blair
was fully compensated through the prior 10% permanent partial disability award.

       In its Order affirming the October 1, 2007, claims administrator’s decision, the Office of
Judges held that Mr. Blair is entitled to a 3% permanent partial disability award for the
December 16, 2005, injury. Mr. Blair disputes this finding and asserts, per the opinion of Dr.
Guberman, that he is entitled to an additional 7% permanent partial disability award.

       The Office of Judges found that the preponderance of the evidence establishes that Mr.
Blair was properly placed in Category III of West Virginia Code of State Rules § 85-20-Table C,
as was found by Drs. Mir and Guberman. The Office of Judges then found that Dr. Guberman’s
method of apportioning for the prior 10% permanent partial disability award before applying
West Virginia Code of State Rules § 85-20 (2006) permits a double recovery, and therefore
relied on Dr. Mir’s recommendation of a 3% permanent partial disability award for the
December 16, 2005, injury. The Board of Review reached the same reasoned conclusions in its
decision of February 25, 2011. We agree with the reasoning and conclusions of the Board of
Review.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.
                                                                                        Affirmed.

ISSUED: February 4, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum
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