                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 12, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
EFFIE M. SHAFFER,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0610 (BOR Appeal No. 2048065)
                   (Claim No. 980050864)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

MONONGALIA COUNTY HEALTH DEPARTMENT,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Effie M. Shaffer, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review. West Virginia Office of the Insurance Commissioner, by
Gregory W. Evers, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated May 17, 2013, in which
the Board affirmed a January 4, 2013, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges affirmed the claims administrator’s December 23, 2010, decision
denying Ms. Shaffer’s request 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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        Ms. Shaffer, an employee of Monongalia County Health Department, injured her back on
April 6, 1998, while attempting to lift a patient from a chair. Ms. Shaffer filed an application for
workers’ compensation benefits and her claim was held compensable. On April 5, 2001, Ms.
Shaffer applied for permanent total disability benefits. Ms. Shaffer submitted two pieces of
evidence in support of her application. The first piece of evidence was a letter from Mitch
Jaques, M.D., that opined Ms. Shaffer was completely and totally disabled. Dr. Jaques did not
attach any report or explanation of his findings. The other piece of evidence was a letter from
Russell Biundo, M.D., which stated that Ms. Shaffer retains no residual employability. Dr.
Biundo’s letter also did not contain examination findings or explain how his opinion was
reached. Monongalia County Health Department submitted the report of Marsha Bailey, M.D.,
who examined Ms. Shaffer and determined that from a physical standpoint she could work. This
opinion was shared by James Wiley, M.D., who also examined Ms. Shaffer. From a psychiatric
standpoint, Ms. Shaffer was evaluated by Ryan Finkenbine, M.D., who determined that she
could work. Ms. Shaffer also had functional capacity evaluations from Erin Saniga, M.E.D.,
C.R.C., L.P.C.; Steven J. Brennan, P.T.; Casey Vass, Q.R.P.; Christa Rudolph, M.P.T.; and Phil
Coke, M.S., P.T. Ms. Sangia determined on July 6, 2012, that Ms. Shaffer could return to work
at a sedentary level. This opinion is also shared by Mr. Vass who concluded the same on January
8, 2004, and Mr. Brennan on May 27, 2009. The functional capacity evaluation by Ms. Rudolph
indicated that her results were invalid due to Ms. Shaffer’s submaximal effort. Both of Mr.
Coke’s evaluations provided invalid results due to Ms. Shaffer’s submaximal effort. The
Permanent Total Disability Review Board concluded that Ms. Shaffer could return to work. Ms.
Shaffer’s case was not decided upon until December 23, 2010, when the claim’s administrator
denied her request for permanent total disability benefits. Ms. Shaffer protested this decision.

        The Office of Judges determined that Ms. Shaffer was not entitled to permanent total
disability benefits because she could return to substantial gainful activity within the requisite
geographical area. The Office of Judges examined the case and determined there were only two
pieces of evidence that supported Ms. Shaffer’s position that she can no longer work in any
capacity. The Office of Judges determined that the letters submitted by Dr. Jaques and Dr.
Biundo were not persuasive because they were not accompanied by any reasoning or testing. The
Office of Judges then turned to the other evidence of record. Dr. Bailey examined Ms. Shaffer
and determined that from a physical standpoint she could work in a sedentary position. This
opinion was also shared by Dr. Wiley. Dr. Finkenbine, from a psychiatric standpoint, determined
that Ms. Shaffer could return to substantial gainful employment. The Office of Judges then
reviewed Ms. Shaffer’s multiple functional capacity evaluations. The Office of Judges noted that
Ms. Shaffer believes she cannot work in any position or in any fashion. The Office of Judges
also noted how three different functional capacity evaluations did not reveal valid results because
Ms. Shaffer gave submaximal effort. Finally, the Office of Judges examined Mr. Brennan’s and
Mr. Vass’s functional capacity evaluations. Both agreed that Ms. Shaffer, with her nursing
degree, could find substantial gainful employment within her geographical area. The Permanent
Total Disability Review Board also determined that Ms. Shaffer could return to substantial
gainful employment. The Office of Judges determined that the findings of the Permanent Total
Disability Review Board, Dr. Bailey, Dr. Wiley, Dr. Finkenbine, and the functional capacity
evaluators established that Ms. Shaffer could engage in substantial gainful employment within

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the requisite geographical area. The Board of Review adopted, in all material respects, the
findings of the Office of Judges and affirmed its Order.

       We agree with the findings of the Office of Judges and the conclusions of the Board of
Review. Ms. Shaffer has the physical and mental abilities to engage in substantial gainful
employment. The only two pieces of evidence that would indicate otherwise are not supported by
reasoning or testing. The well-reasoned reports of several other physicians and functional
capacity evaluators demonstrate that Ms. Shaffer can engage in substantial gainful employment.
The Office of Judges and Board of Review, therefore, were correct in denying Ms. Shaffer’s
request 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 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: March 12, 2015

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




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