                             STATE OF WEST VIRGINIA

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

Claimant Below, Petitioner

vs.)   No. 14-0038 (BOR Appeal No. 2048495)
                   (Claim No. 2007212843)

MCELROY COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Larry Dennis, by M. Jane Glauser, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. McElroy Coal Company, by Edward
M. George III, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 23, 2013, in
which the Board affirmed a May 29, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s February 3, 2010,
decision denying Mr. Dennis’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.

        Mr. Dennis worked as an underground miner for McElroy Coal Company. Mr. Dennis
sustained several injuries throughout the course of his employment including a cervical spine
injury and a right shoulder injury. The claims administrator granted Mr. Dennis an 8%
permanent partial disability award for his cervical spine and an 11% award for his right shoulder
based on an evaluation by James Wiley, M.D. On October 13, 2006, he injured his head, neck,
upper back, and shoulder when a mining canopy fell on him in an underground mine. Following
this injury, Joseph E. Grady II, M.D., evaluated Mr. Dennis and found that he had 25%
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impairment for his cervical spine under the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993) and Cervical Category IV of West Virginia
Code of State Rules § 85-20-E (2006). He also determined that Mr. Dennis had 13% impairment
for his left shoulder. The claims administrator granted Mr. Dennis a permanent partial disability
award based on Dr. Grady’s evaluation. Mr. Dennis filed an application for permanent total
disability benefits based on his prior permanent partial disability awards. The claims
administrator initially denied Mr. Dennis’s application because he had not been granted a sum of
50% permanent partial disability in prior awards. This Court, however, eventually reversed the
claims administrator’s decision and remanded the claim for further consideration of Mr. Dennis’s
permanent total disability application. The claims administrator granted Mr. Dennis an additional
1% permanent partial disability award for his psychiatric condition. Sushil Sethi, M.D., then
evaluated Mr. Dennis and found that he had 18% impairment for his cervical spine, and 3%
impairment for his left shoulder. Dr. Grady then reevaluated Mr. Dennis and modified the
impairment finding related to his left shoulder from 13% impairment to 11% impairment. Mr.
Dennis was then evaluated by the Permanent Total Disability Reviewing Board, who found that
he had 23% whole person impairment related to his compensable injury. The Board based this
determination on the evaluation of Dr. Sethi, but it also added 3% impairment to Dr. Sethi’s
recommendation related to Mr. Dennis’s right shoulder. On February 3, 2010, the claims
administrator rejected Mr. Dennis’s application for permanent total disability benefits based on
the Board’s recommendation. On May 29, 2013, the Office of Judges affirmed the claims
administrator’s decision. The Board of Review then affirmed the Order of the Office of Judges
on December 23, 2013, leading Mr. Dennis to appeal.

        The Office of Judges concluded that the evidence did not show that Mr. Dennis has
suffered at least 50% whole person impairment as required for further consideration of his
permanent total disability benefits under West Virginia Code § 23-4-6(n)(1) (2005). In reaching
this determination, the Office of Judges found that the only evidence in the record which was
relevant to the determination of Mr. Dennis’s whole person impairment was the evaluations of
Dr. Wiley, Dr. Grady, and Dr. Sethi. The Office of Judges found that even when it considered
the evidence in a light most favorable to Mr. Dennis, these evaluations showed that Mr. Dennis
had, at most, 25% impairment for his cervical spine, 11% impairment for his left shoulder, 11%
impairment for his right shoulder, and 1% impairment for his psychiatric condition. The Office
of Judges determined that these various impairments equaled 41% whole person impairment and
was, therefore, short of the whole person impairment threshold. The Board of Review adopted
the findings of the Office of Judges and affirmed its Order.

        On appeal, Mr. Dennis argues that he is entitled to permanent total disability benefits
because he has been granted a sum of at least 50% in prior permanent partial disability awards.
Mr. Dennis argues that this alone is sufficient to entitle him to consideration of his permanent
total disability benefits under West Virginia Code § 23-4-6(n)(2) (2005). Mr. Dennis argues that
he should not have been reevaluated by the Permanent Total Disability Reviewing Board.

       We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Dennis has not demonstrated that he has suffered at least 50% whole person
impairment from his compensable injuries. The available evaluations show that Mr. Dennis
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sustained injuries to his cervical spine, right shoulder, and left shoulder. The record further
establishes that he developed psychiatric conditions related to his injuries. However, the
evaluation of the Permanent Total Disability Reviewing Board confirms that Mr. Dennis has not
suffered 50% impairment related to these conditions, and its recommendation was supported by
the remainder of the evidence in the record. Mr. Dennis’s argument on appeal is contrary to the
plain language of West Virginia Code § 23-4-6(n)(1). Mr. Dennis is not entitled to permanent
total disability benefits, and his application was properly denied.

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

DISSENTING:
Justice Menis E. Ketchum




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