                             STATE OF WEST VIRGINIA

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

INSURANCE COMMISSIONER,
Commissioner Below, Petitioner

vs.)   No. 13-1144 (BOR Appeal No. 2048271)
                   (Claim No. 2006002623)

EARL LESTER ROBINSON,
Claimant Below, Respondent

and

APOGEE COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner the West Virginia Office of Insurance Commissioner, by Anna L. Faulkner, its
attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Earl Lester Robinson, by John C. Blair, his attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated October 11, 2013, in
which the Board reversed a March 28, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 14,
2011, decision which denied Mr. Robinson’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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        Mr. Robinson, a coal miner, sustained multiple injuries in the course of his employment
for Apogee Coal Company including orthopedic injuries, occupational pneumoconiosis, carpal
tunnel syndrome, and hearing loss. He was awarded a total of 69.75% in permanent partial
disability awards. On July 21, 2011, the Permanent Total Disability Review Board found that
Mr. Robinson had sustained 53% whole body impairment. The sole issue on appeal is whether he
is capable of engaging in substantial gainful employment.

        On April 3, 2004, Mr. Robinson was granted Social Security Disability benefits for
osteoarthritis and allied disorders and sprain/strains. He was also granted a United Mine
Workers’ Association disability pension. On January 14, 2010, Richard Wooton, M.P.T.,
performed a functional capacity evaluation in which he determined that Mr. Robinson had no
difficulty with prolonged sitting. He walked with a consistent antalgic gait. He was not able to
squat or kneel due to a total knee replacement. He could lift twenty-five pounds from the floor
and forty pounds from twelve inches. He could carry up to thirty-five pounds and pull up to
thirty pounds. It was noted that the results of the evaluation were not valid secondary to lack of
full effort. Mr. Wooton determined Mr. Robinson could perform at the sedentary physical
demand level if he was allowed to sit frequently.

        Catherine Morehead, B.S., C.M.C., C.D.M.S., Q.R.P., performed a vocational assessment
on January 28, 2010. She noted that Mr. Robinson has non-compensable heart disease; high
blood pressure; and arthritis in his neck, lower back, hands, knees, and shoulders. She asserted
that he was awarded a Social Security Disability award based upon his heart condition. She noted
that he was fifty-four at the time of the evaluation, which Ms. Moorehead stated was considered
younger in vocational terms and was a positive vocational factor. He reported that he walks; does
sit-ups; and uses dumbbells, a rowing machine, and a stationary bike. He also rents and manages
several properties. Ms. Moorehead found Mr. Robinson could read at a post high school level, do
math at a sixth grade level, and spell at a seventh grade level. She stated he would have access to
sedentary/light jobs. He could utilize his experience in sales and his college education to gain
employment. His positive vocational factors were listed as his age; his ability to obtain jobs with
on the job training; his ability to operate a computer; and his ability to read, write, and make
change. She found that Mr. Robinson would be a good candidate for a formal retraining program.
She also found numerous jobs within his geographical area which appeared to allow some
transferable skills within his abilities. She therefore concluded that he was capable of engaging
in substantial gainful employment and recommended vocational rehabilitation services.

        In contrast, Errol Sadlon determined in his July 9, 2011, vocational assessment that Mr.
Robinson would soon be turning fifty-six years old and age was a negative factor for future
employment. He determined that while Mr. Robinson has skills from previous employment, none
of them are transferrable because he is only eligible for sedentary employment. Mr. Sadlon found
that Ms. Moorehead’s vocational evaluation was full of errors. For instance, Ms. Moorehead
stated that Mr. Robinson had several rental properties and could be a property manager. In
actuality, he has one rental unit adjacent to his house for which he hires someone to perform
lawn car and maintenance. Ms. Moorehead also stated that Mr. Robinson received Social
Security Disability and a United Mine Workers’ Association disability pension due to a cardiac
condition. Mr. Robinson actually received Social Security Disability benefits due to work-related
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injuries. A cardiac condition was not considered. Also, disability pensions can only be received
for work-related injuries. Further, Mr. Sadlon found that Ms. Moorehead incorrectly stated Mr.
Robinson’s regional area and the jobs she found were well outside of his seventy-five mile
radius. Mr. Sadlon concluded that Mr. Robinson was incapable of performing sedentary work
because he could not sit for six hours a day, and he had significant problems with his upper
extremities, fine dexterity and gross manipulation. He is also incapable of light physical demand
level work because he is unable to stand/walk for six hours a day. He had no office skills that
would encourage an employer to hire him. Mr. Sadlon determined that he was permanently
disabled.

       In a January 24, 2013, addendum to her report, Ms. Moorehead disagreed with Mr.
Sadlon’s finding that Mr. Robinson could not work an eight hour day. She cited numerous
medical records that she asserted indicates otherwise. She stated that due to an error in her
previous report, she was providing updated regional information, although the remainder of the
labor market survey was accurate. Based in part upon Ms. Moorehead’s report, the Permanent
Total Disability Review Board determined on July 21, 2011, that Mr. Robinson would be a
candidate for vocational rehabilitation. He was noted to currently be managing several rental
properties. Ms. Moorehead’s vocational report was found to be credible. The Board concluded
that he was not permanently and totally disabled. The claims administrator denied Mr.
Robinson’s request for permanent total disability benefits on September 14, 2011.

        The Office of Judges affirmed the claims administrator’s decision in its March 28, 2013,
Order. The Office of Judges found, relying upon Ms. Moorehead’s report, that Mr. Robinson has
the intellectual and physical capacity to perform at least sedentary work and that jobs were
available within his geographical area for which he would be qualified or could become qualified
with training. The Office of Judges noted that Ms. Moorehead corrected her January 28, 2010,
labor market chart in a January 24, 2013, addendum to accurately reflect Mr. Robinson’s
geographical area. In doing so, the unemployment rate improved for the counties within a
seventy-five mile radius of his home. The Office of Judges found discrepancies between the
reports of Ms. Moorehead and Mr. Sadlon. Specifically, Mr. Sadlon found Mr. Robinson’s
hearing loss to be an impediment to working whereas Ms. Moorehead found no hearing problem
of vocational significance. The medical records cite a 4.75%-5% hearing loss and an independent
medical evaluation by Luis Loimil, M.D., noted that Mr. Robinson does not use hearing aids.
Further, the vocational experts differed on the number of rental properties that he manages. The
Office of Judges determined that he has at least some rental management capabilities whether he
has one property or multiple ones. The Office of Judges also found that Mr. Robinson completed
high school, has some college experience, and has computer skills. Therefore, the Office of
Judges concluded that Mr. Robinson has the capacity to be retrained. Ultimately, the Office of
Judges held that he was not permanently and totally disabled because he is capable of engaging
in substantial gainful employment.

       The Board of Review reversed and vacated the Order of the Office of Judges and granted
Mr. Robinson a permanent total disability award. The Board remanded the case to the claims
administrator with instructions to issue a protestable Order establishing the onset date based
upon the date when a properly completed and supported application for permanent total
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disability was filed. The Board of Review determined that the report of Mr. Sadlon was more
credible than that of Ms. Moorehead. It found that Mr. Sadlon noted that Mr. Robinson’s hearing
impairment required the use of a special speakerphone in order to use a telephone. In contrast,
Ms. Moorehead concluded that he had no hearing loss of vocational significance; however, she
failed to provide support for her conclusion. Further, the Board determined that Ms. Moorehead
was under the impression that Mr. Robinson’s Social Security Disability award and United Mine
Workers’ Association disability pension were based upon his heart condition. However, a letter
from the Social Security Administration states that Social Security Disability was approved
based upon osteoarthritis and allied disorders and sprain/strains of all types. Additionally, the
Board found that Ms. Moorehead was under the impression that Mr. Robinson manages several
rental properties and is acting as a property manager. In actuality, he rents one unit adjacent to
his home. When maintenance and lawn care are required, he hires someone. In light of the
inaccurate information in Ms. Moorehead’s report, the Board of Review determined that the
Permanent Total Disability Review Board’s decision was not supported by the evidentiary record
and, therefore, the Office of Judges’ Order was clearly wrong.

       On appeal the West Virginia Office of the Insurance Commissioner argues the Board of
Review erred by conducting a de novo review of the evidence in violation of its standard of
review. It further argues that the Office of Judges’ Order was supported by the evidentiary record
that shows that Mr. Robinson is capable of engaging in substantial gainful employment. Mr.
Robinson argues that the Office of Judges failed to follow the weighing of the evidence and
preponderance of the evidence rules. It incorrectly relied upon Ms. Moorehead’s vocational
assessment, which it even acknowledged contained errors.

       After review, we agree with the reasoning and conclusions of the Board of Review. The
Board of Review did not violate its standard of review when it determined that the Office of
Judges was clearly wrong in relying upon Ms. Moorehead’s assessment which contained
numerous pertinent errors. The evidentiary record indicates that Mr. Robinson is incapable of
substantial gainful employment and is 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:
Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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DISSENTING:
Justice Robin J. Davis




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