                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             January 20, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CHADWICK BLANKENSHIP,                                                         OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1167 (BOR Appeal No. 2048299)
                   (Claim No. 960005020)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

LAST CHANCE LEASING COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Chadwick Blankenship, by Timothy Rosinsky, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. West Virginia Office of
the Insurance Commissioner, by Gregory Evers, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 25, 2013, in
which the Board affirmed an April 10, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 3, 2011,
decision, which denied a 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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       Mr. Blankenship, an underground coal miner, was injured in the course of his
employment on August 21, 1995, when he slipped and fell. The Order or Orders of
compensability are not of record, but it appears that the claim was held compensable for lower
back sprain/strain and contusion of the left knee and wrist. Mr. Blankenship has met the first two
thresholds for permanent total disability benefits, and the sole issue on appeal before this Court is
whether he is capable of engaging in substantial gainful employment.

        Mr. Blankenship underwent a functional capacity evaluation on November 6, 1996, at
Logan Regional Hospital Rehabilitation Services Department. His test performance was severely
impaired by low back pain with radiation into the left leg. His abilities did not match the
requirements of his pre-injury position, and he had poor potential to meet those requirements due
to low back pain and poor motivation. He had the ability to increase his physical demand level to
the low-medium category through a work hardening program. He completed seventeen out of
twenty work hardening sessions. He was limited by poor motivation and back pain. He
consistently demonstrated a slow work pace, poor productivity, and occasionally reported that he
did not wish to return to his pre-injury employment. Vocational rehabilitation was recommended
due to functional deficits and an unwillingness to return to his pre-injury position.

       Prasadarao Mukkamala, M.D., performed an independent medical evaluation on January
18, 1999, in which he diagnosed sprain of the left wrist, left knee, and lumbar spine. He
concluded that Mr. Blankenship was at maximum medical improvement, required no further
treatment, and could work at the sedentary physical demand level. He was limited to sedentary
work mostly due to his left knee. On September 28, 1999, Roger Baisas, M.D., performed a
neurosurgical consultation in which he opined that it was very unlikely Mr. Blankenship suffered
from anything of neurosurgical significance. His gait was noted to be slow and deliberate with
some kind of exaggeration.

       On July 12, 2000, Charles Weise, M.D., performed a psychiatric independent medical
evaluation and found that Mr. Blankenship’s complaints exceeded the objective findings of
emotional illness. His IQ score was in the extremely low range but he read at a high school level.
Dr. Weise diagnosed dysthymic disorder, somatoform pain disorder associated with
psychological factors and a physical condition, and intellectual test scores in the extremely low
range. Mr. Blankenship had reached maximum medical improvement and had 5% whole person
impairment due to the compensable injury. His psychological condition would not prevent him
from returning to the work he did in the past or prevent him from taking part in retraining. Bruce
Guberman, M.D., performed an independent medical evaluation on January 9, 2001, in which
Mr. Blankenship’s intellectual functioning and mental status were normal. He opined that the
impairment was likely to be progressive and assessed 33% whole person impairment.

        In January and February of 2001, Patricia Pauley, M.A., and D.H. Webb, M.D.,
performed psychiatric and psychological evaluations of Mr. Blankenship. They reported he was
tearful at several points in the evaluation and his mood was depressed and anxious. His
intelligence was estimated to be borderline to low. Dr. Webb noted that Dr. Weise’s IQ test
showed an IQ of sixty-four which is in the mild mental retardation range; however, the wide
range achievement test showed a reading score of eighty-six, which is at the high school level.
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Dr. Webb concluded that other factors impacted the IQ test and the claimant appears to function
above a mentally retarded level. Results on the MMPI-2, a personality test, indicated Mr.
Blankenship may have over-reported his symptoms to some extent. The Axis I diagnoses were
mood disorder due to work-related injuries and chronic pain with major depressive like episode
and anxiety disorder due to work-related injuries, chronic pain, and generalized anxiety. The
Axis II diagnosis was dependent personality traits. The claimant had a global assessment of
functioning score of forty. Dr. Webb stated that Mr. Blankenship had rather severe depression
and anxiety which are clearly related to the compensable injury. He would likely need treatment
for the rest of his life and had moderate impairment of 25-30%.

        Mr. Blankenship underwent an independent medical evaluation on July 16, 2001, by Paul
Forberg, M.D. Dr. Forberg stated that Mr. Blankenship was not working but without objective
physical findings to support his pain complaints, he could return to a modified or transitional
work assignment with no heavy lifting, repetitive bending and stooping, prolonged sitting,
prolonged ambulation, or repetitive use of the left upper extremity. However, due to Mr.
Blankenship’s medications and psychiatric diagnoses, it was unlikely he would return to work.
He noted that despite the medications he currently takes, Mr. Blankenship reported that his pain
was a seven out of ten but he displays no overt pain behavior other than limited range of motion
of the cervical and lumbar spine. Further, there are references to exaggerated physical complaints
in the medical history.

        Ahmed Faheem, M.D., performed a psychological evaluation on July 24, 2001, and found
that Mr. Blankenship’s attention and concentration were impaired. The Axis I diagnosis was
dysthymic disorder and his global assessment of functioning score was sixty. Dr. Faheem opined
that he has problems with chronic depression which are partially related to the compensable
injury. He had 5% impairment due to the compensable injury and the psychiatric problems were
not disabling or progressive. Mr. Blankenship had an IQ score of sixty-four which places him in
the mildly mentally retarded range. He was at a sixth grade reading level, fourth grade spelling
level, and third grade math level. On September 13, 2001, N. Arthur Lilly, M.S., A.T.C.,
attempted to perform a functional capacity evaluation. Mr. Blankenship completed grip, pinch,
and material handing only. He was unable to complete the rest of the evaluation due to
psychophysical lower back pain. He became very upset during the evaluation, and Mr. Lilly
stated that unless he could maintain emotional composure his potential for completing the
evaluation was extremely poor

        A permanent total disability evaluation was performed by Mark A. Hileman, M.A.,
C.R.C., C.D.M.S., C.C.M., on November 19, 2001. He discovered that Mr. Blankenship had a
sixth grade reading level, fifth grade spelling level, and fourth grade math level. An IQ test put
him in the mild mentally handicapped intelligence range with a score of sixty-six. Based upon
his scores, he would not be a good candidate for a formal training program. Physical capabilities
were unclear because he was unable to complete a functional capacity evaluation due to
emotional and psychophysical issues. From a physical standpoint, Mr. Blankenship could
perform, at best, sedentary to light work with restrictions on sitting, walking, bending, stooping,
and use of the upper left extremity. Mr. Hileman found several jobs in the area that he could do
but stated that the wages were not high enough to be considered substantial gainful employment
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as compared to his pre-injury earnings. He conclude that Mr. Blankenship would have difficulty
securing gainful employment based upon his previous earnings, work history, current physical
and emotional limitations, intelligence, and academic achievement skills.

        The Permanent Total Disability Review Board issued its final recommendation on
January 13, 2011. It found that Mr. Blankenship’s injuries, limitations, and psychiatric
impairment do not indicate that he is permanently and totally disabled. Though Dr. Hileman
indicated that he would have difficulty finding a job, he identified a number of positions which
are available within his geographical area that fit his functional and vocational profile. The
claims administrator denied a request for permanent total disability benefits on February 3, 2011.

        A final psychiatric independent medical evaluation was performed on July 20, 2012, by
Mark Casdorph, M.D. Dr. Casdorph noted that Mr. Blankenship’s test of memory malingering
scores indicate that he likely intentionally performed poorly in order to present himself as
memory impaired. His responses in the pain patient profile validity testing showed he tended to
magnify his symptoms and presented an idealized and unrealistic version of his behavior. Mr.
Blankenship’s WRAT3 indicated he performed at a high school reading level, sixth grade
spelling level, and fourth grade math level. His IQ score was sixty-eight which falls in the mild
range of mental impairment. Dr. Casdorph diagnosed dysthymia and somatoform pain disorder.
He stated that the record contains numerous instances where Mr. Blankenship demonstrated
significant psychological overlay to his physical complaints and/or an exaggeration of his
physical and psychological findings. He does suffer from some degree of chronic depressive
symptoms as the result of compensable and non-compensable factors. He has underlying
dependent, passive personality traits. He is not psychiatrically precluded from returning to the
workforce and participating in vocational retraining.

        The Office of Judges affirmed the claims administrator’s decision in its April 10, 2013,
Order. It noted that the claim was held compensable for a lower back sprain and contusions of
the left knee and wrist. It found that Dr. Casdorph’s opinion was very reliable. He conducted a
more thorough battery of tests than the other psychiatrists of record and found that Mr.
Blankenship’s depression was multi-factorial. Dr. Casdorph opined that Mr. Blankenship was not
psychologically precluded from working. In contrast, the Office of Judges determined that Dr.
Webb’s report was out of line with the other reports of record. His psychological testing was
inconsistent in that Mr. Blankenship tested in the mild range of mental retardation yet his reading
score indicated he was at a high school reading level. Dr. Webb even stated that he functioned
above a mentally retarded level. The Office of Judges found that Dr. Webb did not fully consider
Mr. Blankenship’s MMPI-2 test which suggested that he over-reported symptoms to some
extent. Dr. Webb stated that his profile was not invalid because his clinical scale evaluations
seemed to be consistent with the symptoms he presented. The Office of Judges concluded that
various orthopedic and other reports show that Mr. Blankenship tends to exaggerate his
symptoms and there is no reliable diagnostic evidence of objective compensable conditions.
Further, Dr. Forberg concluded that his pain complaints were entirely subjective and that his
responses to testing were not appropriate and suggested symptom magnification. Because Dr.
Webb did not fully consider the evidence that Mr. Blankenship over-reported and magnified his
symptoms, his report was given much less evidentiary weight than the others of record.
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        The Office of Judges found that the Permanent Total Disability Review Board properly
analyzed Mr. Hileman’s report. The Office of Judges found that considering the reports of
symptom magnification and the lack of objective diagnostic evidence of a serious injury, Mr.
Blankenship’s failure to complete the functional capacity evaluation was an instance of him
attempting to portray himself as disabled. The Office of Judges stated that it was important to
note that there are a substantial number of reports of record indicating that he is prone to
symptom magnification and exaggeration. Also, a Dermatomal Evoked Potential study indicated
an abnormality at L5-S1; however, the medical reports of record do not place much emphasis on
the results. Mr. Blankenship had unremarkable MRIs of the lumbar spine, and his claim is only
compensable for sprains/strains.

        It was found that the more persuasive reports of record suggest that Mr. Blankenship has
over-reported his symptoms. Psychiatric reports by Drs. Weise and Faheem found only 5%
psychiatric permanent partial disability, and their reports were determined to be more persuasive
than the others of record. Thus, Mr. Hileman was correct in finding Mr. Blankenship could
perform sedentary to light unskilled and lower semi-skilled labor. The Office of Judges found
that Mr. Hileman was incorrect in his conclusion that the jobs he identified were not gainful
employment. He incorrectly compared the wages to Mr. Blankenship’s previous earnings. Such
comparison is not a factor in the determination of a permanent total disability award. Therefore,
the jobs Mr. Hileman identified are appropriate and not excluded.

        Mr. Blankenship argued before the Office of Judges that he had fully complied with
rehabilitation efforts. The Office of Judges found, however, that he attended only one GED class
and did not return because one of his physicians told him that he was not a vocational
rehabilitation candidate. This did not occur until after vocational services had attempted an active
job search. The Office of Judges found that the physicians of record generally did not find that he
was disabled due to physical disabilities. Likewise, the psychiatrists of record did not find that he
was disabled from a psychological stand point. Mr. Blankenship’s physical and psychiatric
injuries are relatively mild, there is no evidence of disc herniations in the spine, and he does not
require knee surgery. The Office of Judges therefore held that he was not entitled to permanent
total disability benefits because he is capable of engaging in substantial gainful employment.

         The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order. On appeal, Mr. Blankenship argues that he is incapable of
engaging in substantial gainful employment due to his severe physical and psychological
limitations, limited intelligence, non-transferrable skills, daily medications, and functional
illiteracy. The West Virginia Office of the Insurance Commissioner asserts that the evidentiary
record establishes that Mr. Blankenship has exaggerated and magnified his symptoms, that his
injuries do not prevent him from engaging in substantial gainful employment, and that there are
jobs available for him within his geographical area.

       After review, this Court agrees with the reasoning of the Office of Judges and the
conclusions of the Board of Review. The evidentiary record indicates that Mr. Blankenship is

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capable of engaging in substantial gainful employment and that there are jobs available that fit
his capabilities. He is therefore not permanently and totally disabled.

        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: January 20, 2015

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

DISSENTING:
Chief Justice Margaret L. Workman




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