                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


THOMAS L. COOPER.
Claimant Below, Petitioner                                             FILED
                                                                   March 10, 2017
vs.) No. 15-1095     (BOR Appeal No. 2050355)                         released at 3:00 p.m.
                                                                    RORY L. PERRY, II CLERK
                     (Claim No. 2008049105)                       SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA


APPALACHIAN POWER COMPANY,
Employer Below, Respondent



                             MEMORANDUM DECISION


      Petitioner, Thomas L. Cooper, by Patrick K. Maroney, his attorney, appeals a decision
of the Worker’s Compensation Board of Review. Respondent, Appalachian Power
Company, by its attorney, Henry C. Bowen, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 5, 2015,
reversing a March 19, 2015, order of the Worker’s Compensation Office of Judges that
remanded Mr. Cooper’s claim to the self-insured employer, Appalachian Power, for another
evaluation concerning the amount of Mr. Cooper’s whole body medical impairment.1 The
Board of Review concluded that Mr. Cooper could not meet the statutory threshold of fifty
percent whole body medical impairment necessary for permanent total disability
consideration and reinstated the claims administrator’s May 21, 2014, order denying Mr.
Cooper an award of permanent total disability benefits. In this appeal, Mr. Cooper seeks




       1
        The Office of Judges further ordered that after the reevaluation of Mr. Cooper’s
whole body medical impairment was complete, the claim was to be referred to the Permanent
Total Disability Review Board “to make a determination concerning that issue and for a
protestable decision [to] be issued after the board’s review on the permanent total disability
threshold issue.”

                                              1

reversal of the Board of Review’s order and reinstatement of the March 19, 2015, order of
the Office of Judges.2

       Upon consideration of the parties’ briefs, oral arguments, the submitted appendix and
pertinent authorities, this Court finds no substantial question of law and no prejudicial error.
For these reasons, a memorandum decision affirming the Board of Review’s order is
appropriate under Rule 21 of the Rules of Appellate Procedure.

       Mr. Cooper filed an application for permanent total disability benefits on March 20,
2012. Over the course of his thirty-eight years of employment with Appalachian Power, Mr.
Cooper sustained multiple work-related injuries. His last injury occurred on June 20, 2008,
when he suffered a traumatic amputation of multiple fingers when a piece of equipment ran
over his right hand. Mr. Cooper never returned to work, and he was ultimately granted a
forty-three percent permanent partial disability award for the injury pursuant to a
memorandum decision issued by this Court on December 5, 2012. Mr. Cooper was also
granted a ten percent permanent partial disability award for psychiatric impairment arising
from the injury.

        Mr. Cooper’s application for permanent total disability benefits indicated he had
received prior permanent partial disability awards totaling sixty-three percent.3 Thus, he
satisfied the first threshold for permanent total disability consideration set forth in West
Virginia Code § 23-4-6(n)(1) (2010).4 Accordingly, the Permanent Total Disability Review


       2
        Alternatively, Mr. Cooper has requested that this Court find that he satisfies the fifty
percent threshold for permanent total disability consideration and then remand his claim to
the Permanent Total Disability Review Board to determine if he can be vocationally
retrained.
       3
        In addition to the permanent partial disability awards discussed above, Mr. Cooper
received a six percent permanent partial disability award for an April 1976 low back injury;
a three percent permanent partial disability award for a September 1985 neck injury; and a
one percent permanent partial disability award for a January 2000 right shoulder injury.
       4
           West Virginia Code § 23-4-6(n)(1) provides, in pertinent part:

                        [I]n order to be eligible to apply for an award of
                 permanent total disability benefits . . . a claimant: (A) Must
                 have been awarded the sum of fifty percent in prior permanent
                 partial disability awards; (B) must have suffered a single
                 occupational injury or disease which results in a finding by the

                                                2

Board (hereinafter “PTDRB”) referred Mr. Cooper to Dr. Marsha Bailey for the purpose of
reevaluating his whole body medical impairment.5

       After examining Mr. Cooper, Dr. Bailey reported that he has a forty-three percent
whole body medical impairment. In her report, Dr. Bailey indicated that Mr. Cooper has a
five percent whole body medical impairment under the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (hereinafter “AMA
Guides”) with regard to his lumbar complaints but that application of Table § 85-20-C of the
West Virginia Code of State Rules adjusted the impairment to zero percent.6 Dr. Bailey


                 commission that the claimant has suffered a medical impairment
                 of fifty percent; or (C) has sustained a thirty-five percent
                 statutory disability pursuant to the provisions of subdivision (f)
                 of this section.
       5
           West Virginia Code § 23-4-6(n)(1) further provides:

                         Upon filing an application, the claim will be reevaluated
                 by the [Permanent Total Disability Review Board] . . . to
                 determine if the claimant has suffered a whole body medical
                 impairment of fifty percent or more resulting from either a
                 single occupational injury or occupational disease or a
                 combination of occupational injuries and occupational diseases
                 or has sustained a thirty-five percent statutory disability . . . . If
                 the claimant has not suffered whole body medical impairment of
                 at least fifty percent or has sustained a thirty-five percent
                 statutory disability . . . the request shall be denied.

(Emphasis supplied).
       6
           West Virginia Code of State Rules § 85-20-64.2 provides, in pertinent part:

                        Lumbar Spine Impairment: The range of motion
                 methodology for assessing permanent impairment shall be used.
                 However, a single injury or cumulative injuries that lead to a
                 permanent impairment to the Lumbar Spine area of one’s person
                 shall cause an injured worker to be eligible to receive a
                 permanent partial disability award within the ranges identified
                 in Table §85-20-C. The rating physician must identify the
                 appropriate impairment category and then assign an impairment

                                                   3

further opined that “Mr. Cooper’s simple sprain and strain that he sustained at work in 1976
has long since resolve[d] and his ongoing complaints are unrelated to his remote lumbar
sprain and strain.” Dr. Bailey made similar findings concerning Mr. Cooper’s cervical
complaints. In that regard, she reported that Mr. Cooper has a four percent whole body
medical impairment for his cervical complaints under the AMA Guides but that application
of Table § 85-20-E of the West Virginia Code of State Rules adjusted the impairment to zero
percent.7 Dr. Bailey further stated:

                 It is my opinion Mr. Cooper’s cervical complaints are solely a
                 result of his pre-existing conditions, including his history of
                 three cervical vertebrae fractures in 19728 as well as normal age
                 related changes which would be expected in a 66 year old
                 gentleman and unrelated to his simple sprain and strain that he
                 sustained at work in 1985. You will recall that on the day of his
                 neck injury, x-rays of Mr. Cooper’s cervical spine revealed
                 degenerative disc disease.

(Footnote added). Based upon Dr. Bailey’s report, the PTDRB concluded that Mr. Cooper
did not satisfy the second statutory threshold for further permanent total disability
consideration, which requires whole body medical impairment of fifty percent or more.9 In
rendering its decision, the PTDRB stated that Mr. Cooper “should have 5% for the lower
back . . . . The Board evaluates whole person impairment based on the range of motion



                 within the appropriate range designated for that category.
       7
           West Virginia Code of State Rules § 85-20-64.4 provides, in pertinent part:

                        Cervical Spine Impairment: A single injury or cumulative
                 injuries that lead to a permanent impairment to the [Cervical]
                 Spine area of one’s person shall cause an injured worker to be
                 eligible to receive a permanent partial disability award within
                 the ranges identified in Table §85-20-E. The rating physician
                 must identify the appropriate impairment category and then
                 assign an impairment within the appropriate range designated
                 for that category.
       8
           Mr. Cooper was in a non-work-related motor vehicle accident.
       9
           See supra note 5.

                                                4

model, 4th Edition of the [AMA] Guides, without the spinal adjustment of Rule 20.”10 The
PTDRB further noted, however, that even with the additional five percent impairment for his
lumbar complaints, Mr. Cooper’s whole body medical impairment was only forty-six percent.
Based on the PTDRB’s determination that Mr. Cooper did not satisfy the fifty percent
threshold for further permanent total disability consideration, the claims administrator
entered an order on May 21, 2014, denying Mr. Cooper’s request for permanent total
disability benefits. Mr. Cooper appealed the decision to the Office of Judges.

       Upon review, the Office of Judges reversed the claims administrator’s decision and
remanded the claim for another whole body medical impairment evaluation to be followed
by another determination by the PTDRB regarding Mr. Cooper’s eligibility for further
permanent total disability consideration. The Office of Judges noted that Dr. Bailey also
applied Rule 20 to Mr. Cooper’s cervical impairment, but the PTDRB had not ascribed any
impairment for the cervical spine as it had for the lumbar spine. The Office of Judges found
that Dr. Bailey’s report was “flawed and not credible” because of her application of Rule 20
to Mr. Cooper’s lumbar and cervical impairment. Thus, the Office of Judges concluded that
another evaluation of Mr. Cooper’s whole body medical impairment was necessary.
Appalachian Power appealed the decision to the Board of Review.

        After considering the record and arguments of the parties, the Board of Review found
that the Office of Judges had made an error of law. In that regard, the Board of Review
explained that lumbar and cervical impairment must be adjusted to fit within the Tables set
forth West Virginia Code of State Rules §§ 85-20-C and 85-20-E, respectively. The Board
of Review further found that Dr. Bailey’s application of Rule 20 was proper and concluded
that the evidence demonstrated Mr. Cooper could not satisfy the fifty percent whole body
medical impairment threshold for further permanent total disability consideration.
Accordingly, the Board of Review reinstated the claims administrator’s May 21, 2014, order
denying Mr. Cooper permanent total disability benefits. This appeal followed.

      Our review of the Board of Review’s final order is guided by statute. Pursuant to
West Virginia Code § 23-5-15(b) (2010),

                    In reviewing a decision of the board of review, the
              Supreme Court of Appeals shall consider the record provided by


       10
         “Rule 20” is a short-hand reference to the Tables in West Virginia Code of State
Rules § 85-20, which provide impairment categories and ranges of impairment for
compensable back injuries. See supra notes 6 and 7 (setting forth the provisions in 85 C.S.R.
§ 20 that direct rating physicians to use the Tables to assign impairment).

                                             5

              the board and give deference to the board’s findings, reasoning
              and conclusions, in accordance with subsections (c) and (d) of
              this section.

Subsection (d) of the statute, which is applicable in this instance,11 provides:

                      If the decision of the [Board of Review] effectively
              represents a reversal of a prior ruling of either the commission
              or the Office of Judges that was entered on the same issue in the
              same claim, the decision of the board may be reversed or
              modified by the Supreme Court of Appeals only if the decision
              is in clear violation of constitutional or statutory provisions, is
              clearly the result of erroneous conclusions of law, or is so
              clearly wrong based upon the evidentiary record that even when
              all inferences are resolved in favor of the board’s findings,
              reasoning and conclusions, there is insufficient support to
              sustain the decision. The court may not conduct a de novo
              re-weighing of the evidentiary record. If the court reverses or
              modifies a decision of the board pursuant to this subsection, it
              shall state with specificity the basis for the reversal or
              modification and the manner in which the decision of the board
              clearly violated constitutional or statutory provisions, resulted
              from erroneous conclusions of law, or was so clearly wrong
              based upon the evidentiary record that even when all inferences
              are resolved in favor of the board’s findings, reasoning and
              conclusions, there is insufficient support to sustain the decision.

W.Va. Code § 23-5-15(d).

       In this appeal, Mr. Cooper argues that his whole body medical impairment should not
have been reevaluated. He maintains that because his prior permanent partial disability
awards totaled more than fifty percent, his whole body medical impairment should not have
been reduced based upon the “secondary” examination completed by Dr. Bailey. We have
explained that “[t]he right to workmen’s compensation benefits is wholly statutory.” Syl.


       11
         Subsection (c) of West Virginia Code § 23-5-15 provides the standard for reviewing
a decision of the Board of Review that “represents an affirmation of a prior ruling by both
the commission and the Office of Judges that was entered on the same issue in the same
claim[.]” Id.

                                              6

Pt. 2, in part, Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448
(1965). As such, “where the language of a statute is plain and unambiguous, there is no basis
for application of rules of statutory construction; but courts must apply the statute according
to the legislative intent plainly expressed therein.” Id. at 266, 140 S.E.2d at 449, syl. pt. 1.
We find no merit to Mr. Cooper’s argument because the plain language of West Virginia
Code § 23-4-6(n)(1) expressly requires a revaluation of whole body medical impairment to
determine a claimant’s eligibility for a permanent total disability award.12 See Dennis v.
McElroy Coal Co., No. 14-0038, 2015 WL 249414 (W.Va. Jan. 20, 2015) (memorandum
decision) (rejecting claimant’s assertion that he should not have been reevaluated by PTDRB
as contrary to plain language of W.Va. Code § 23-4-6(n)(1)).

       Having carefully reviewed the record in this case, we find no violation of a statutory
provision or erroneous conclusion of law in the Board of Review’s final order. As the Board
of Review noted in its decision, we addressed the issue of applying § 85-20 of the West
Virginia Code of State Rules to whole body medical impairment evaluations made for
purposes of determining a claimant’s eligibility for a permanent total disability award in
Bowles v. The New West Virginia Mining Company, No. 14-1066, 2015 WL 4168502 (W.Va.
July 9, 2015) (memorandum decision). In that case, the claimant was also challenging the
denial of his application for permanent total disability benefits. Like Mr. Cooper, Mr.
Bowles had suffered multiple work-related injuries during the course of his employment and
had received permanent partial disability awards for lumbar and cervical injuries. Mr.
Bowles was evaluated by multiple physicians for the purpose of determining his whole body
medical impairment. Some of those physicians applied the Tables in 85 C.S.R. § 20 to their
impairment determinations regarding Mr. Bowles’s lumbar and cervical injuries and others
did not. The PTDRB and the Office of Judges discounted the whole body medical
impairment findings made by the physicians who applied 85 C.S.R. § 20. Although Mr.
Bowles could not satisfy the fifty percent whole body medical impairment threshold, even
when 85 C.S.R. § 20 was not applied to the lumbar and cervical impairment determinations
made under the AMA Guides, this Court, nonetheless, made clear that the PTDRB and
Office of Judges committed error by calculating his whole body medical impairment
“without adjusting his lumbar and cervical impairment to fit within West Virginia Code of
State Rules §§ 85-20-C and 85-20-E [because] this adjustment is required under West
Virginia Code of State Rules § 85-20-64.1(2006).”13 Bowles at *3; see also Mullins v. Speed

       12
            See supra note 5.
       13
            West Virginia Code of State Rules § 85-20-64.1 provides, in pertinent part:

                       Permanent partial disability assessments shall be
                 determined based upon the range of motion models contained in

                                               7

Mining, LLC, No. 15-0816, 2016 WL 4133881 (W.Va. Aug. 1, 2016) (memorandum
decision) (finding Office of Judges improperly calculated whole body medical impairment
by utilizing range of motion model of AMA Guides without application of 85 C.S.R. § 20);
Elkins v. West Virginia Office of Ins. Comm’r, No. 13-0659, 2014 WL 5068096 (W.Va. Oct.
7, 2014) (memorandum decision) (finding physician’s whole body medical impairment
evaluation not reliable because of failure to adjust impairment to fit within 85 C.S.R. § 20).
Because Dr. Bailey correctly applied § 85-20 of the West Virginia Code of State Rules to her
assessment of Mr. Cooper’s lumbar and cervical impairment, the Board of Review was not
clearly wrong in finding that Mr. Cooper could not satisfy the fifty percent whole body
medical impairment threshold necessary for further consideration of his eligibility for
permanent total disability benefits.

       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 an
erroneous conclusion 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.



              the Guides Fourth. Once an impairment level has been
              determined by range of motion assessment, that level will be
              compared with the ranges set forth below. Permanent partial
              disability assessments in excess of the range provided in the
              appropriate category as identified by the rating physician shall
              be reduced to within the ranges set forth below.

West Virginia Code of State Rules §§ 85-20-64.2 through 85-20-64.4 and Tables §§ 85-20-C
through E define the impairment ranges for the lumbar, thoracic and cervical areas of the
spine. In Simpson v. West Virginia Office of Insurance Commissioner, 223 W.Va. 495, 504,
678 S.E.2d 1, 10 (2009), this Court considered “whether the Legislature ha[d] violated the
separation of powers by authorizing in W.Va. Code § 23-4-3b(b), the adoption of a rule to
standardize guidelines for the evaluation of permanent impairment, specifically W.Va.
C.S.R. Table § 85-20-C, which establishes impairment ratings for lumbar spine injuries.”
We concluded that “W.Va. C.S.R. Table § 85-20-C (2004) is valid and is a proper exercise
of the rule-making authority delegated to the Workers’ Compensation Board of Managers
by the Legislature in W.Va.Code § 23-4-3b(b) (2005) (Repl. Vol. 2005).” Simpson, 223
W.Va. at 498, 678 S.E.2d at 4, syl. pt. 16. Obviously, our holding extends to the other Tables
included in 85 C.S.R. § 20.

                                               8

ISSUED: March 10, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




                                    9
