                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JACK D. CHAMBERS,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0130 (BOR Appeal No. 2047503)
                   (Claim No. 2001012942)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

INDEPENDENCE COAL COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Jack D. Chambers, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by John H. Snyder, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated January 25, 2013, in
which the Board affirmed a July 27, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 16,
2009, decision denying Mr. Chambers’s application for permanent total disability benefits. 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.

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        Mr. Chambers worked as a mechanic and electrician for Independence Coal Company,
Inc. Throughout the course of his employment, Mr. Chambers suffered several compensable
injuries and was granted several permanent partial disability awards based on these injuries. Mr.
Chambers applied for permanent total disability benefits based on these injuries. Errol Sadlon
performed a vocational rehabilitation evaluation on Mr. Chambers and found that he was totally
disabled. Mr. Sadlon determined that Mr. Chambers was not able to sit for forty-five minutes and
was only able to stand for five minutes at a time. Clifford Carlson, M.D., then evaluated Mr.
Chambers and determined that he had 61% whole person impairment related to his compensable
injuries. Dr. Carlson determined that Mr. Chambers could work at a sedentary physical demand
level. The Permanent Total Disability Reviewing Board then recommended that Mr. Chambers’s
application for benefits be denied because it found that he was able to engage in substantial
gainful employment. The Board identified several jobs in Mr. Chambers’s geographic area that
he was capable of performing, including a driver position and a security guard position. On
December 16, 2009, the claims administrator denied Mr. Chambers’s application for permanent
total disability benefits. Marj Weigel, P.T., then performed a functional capacity evaluation on
Mr. Chambers. She found that his abilities were partially self-limited by his effort. Ms. Weigel
determined that he could perform at the medium physical demand level and specifically
determined that he could perform several basic functions, including reaching overhead with both
arms and climbing stairs. Ms. Weigel noted that Mr. Chambers was limited in his ability to
crouch or kneel because of the pain in his knees. On July 27, 2012, the Office of Judges affirmed
the claims administrator’s decision. The Board of Review affirmed the Order of the Office of
Judges on January 25, 2013, leading Mr. Chambers to appeal.

        The Office of Judges concluded that Mr. Chambers was not permanently and totally
disabled within the meaning of West Virginia Code § 23-4-6(n)(2) (2005). In reaching this
determination, the Office of Judges relied on the functional capacity evaluation of Ms. Weigel. It
found that Ms. Weigel’s report was the only functional capacity evaluation in the record. The
Office of Judges considered the report of Dr. Carlson, but it determined that he incorrectly
calculated Mr. Chambers’s impairment according to the Combined Values Chart of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993). The Office of Judges further noted that even Dr. Carlson believed that Mr. Chambers
could at least function at the sedentary physical demand level. The Office of Judges also
considered the report of Mr. Sadlon but determined that it was not persuasive because Mr.
Sadlon did not base his conclusion on a functional capacity evaluation that was in the record.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

       We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. The evidence in the record shows that Mr. Chambers is not permanently and totally
disabled such that he is unable to engage in substantial gainful employment. The only evaluation
of Mr. Chambers’s functional capacity in the record is the report of Ms. Weigel, who determined
that he could function at a medium physical demand level. The record indicates that there are
several employment opportunities at that physical demand level within Mr. Chambers’s
geographic area. The Office of Judges was within its discretion in relying on Ms. Weigel’s
opinion. Mr. Sadlon’s opinion that Mr. Chambers is permanently and totally disabled is not

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supported by any functional capacity evaluation in the record, and the Office of Judges properly
found that it is unpersuasive.

        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: June 10, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

Justice Brent D. Benjamin, disqualified.




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