                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                              February 3, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
JOEL ROBINSON,                                                                 OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0376	 (BOR Appeal No. 2048924)
                   (Claim No. 2006060724)

JIM CONSTRUCTION, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Joel Robinson, by William Gerwig III, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Jim Construction, Inc., by Marion Ray,
its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 27, 2014, in
which the Board affirmed a November 5, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 1, 2013,
decision denying Mr. Robinson’s request for a permanent total disability award. 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. Robinson was seriously injured on November 3, 2006, when he fell from a great
height while participating in the construction of a bridge. On December 13, 2007, Robert
Walker, M.D., performed an independent medical evaluation to determine the amount of Mr.
Robinson’s whole person impairment arising from the November 3, 2006, injury. Dr. Walker
opined that Mr. Robinson sustained 14% whole person impairment as a result of injuries to the
central nervous system, 12% whole person impairment as a result of range of motion
abnormalities arising from a left femur fracture, 10% whole person impairment as a result of
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dysphagia and esophageal dismotility, 8% whole person impairment as a result of range of
motion impairment arising from a right humerus fracture, 8% whole person impairment as a
result of range of motion abnormalities arising from a fractured right tibia, 5% whole person
impairment as a result of severe tracheostomy scarring, and 5% whole person impairment as a
result of traumatic diabetes insipidus, for a total of 48% whole person impairment.1 Dr. Walker
noted that his recommendation excludes any potential impairment arising from hearing loss,
vision loss, or psychiatric conditions.

        Bruce Guberman, M.D., performed an independent medical evaluation on July 23, 2008.
Dr. Guberman opined that Mr. Robinson sustained 7% whole person impairment as a result of a
closed head injury with altered mental status, 9% whole person impairment as a result of
impaired function and coordinated activities in the right upper extremity, 5% whole person
impairment as a result of traumatic diabetes insipidus, 5% whole person impairment as a result of
an underactive thyroid gland, 11% whole person impairment as a result of range of motion
abnormalities in the right elbow and right shoulder, 12% whole person impairment as a result of
range of motion abnormalities in the right lower extremity, 13% whole person impairment as a
result of range of motion abnormalities in the left lower extremity, 5% whole person impairment
as a result of multiple scars arising from surgical procedures, and 5% whole person impairment
arising from esophageal spasm, for a total of 50% whole person impairment.

        Mr. Robinson received a 50% permanent partial disability award based upon Dr.
Guberman’s evaluation. Additionally, he received a 6% permanent partial disability award as a
result of vision impairment in the right eye and a 3% permanent partial disability award as a
result of loss of the sense of smell and taste. After amassing more than 50% in permanent partial
disability awards, Mr. Robinson filed an application for a permanent total disability award on
December 28, 2011.

        Joseph Grady, M.D., performed an independent medical evaluation on February 22,
2012. He noted that Mr. Robinson’s condition has significantly improved following the 2007 and
2008 independent medical evaluations, with Mr. Robinson exhibiting a normal range of motion
in both upper extremities, the cervical spine, and the lower back. Additionally, he noted that Mr.
Robinson exhibits normal range of motion in both lower extremities with the exception of the
right ankle. Dr. Grady opined that Mr. Robinson sustained 14% whole person impairment as a
result of altered mental status following a traumatic brain injury, 3% whole person impairment as
a result of traumatic anosmia, 5% whole person impairment as a result of a residual pelvic
deformity, 3% whole person impairment as a result of loss of range of motion in the right ankle,
5% whole person impairment as a result of post-traumatic diabetes insipidus, 5% whole person
impairment as a result of right eye ptosis, and 5% whole person impairment as a result of
multiple residual scars, for a total of 34% whole person impairment. Dr. Grady noted that his
recommendation excludes potential impairment arising from injuries to the right eye. On April

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  Although Dr. Walker opined that Mr. Robinson sustained a total of 48% whole person
impairment, the claims administrator determined that Dr. Walker erroneously calculated the
amount of whole person impairment as 48% and reported the corrected calculation at 46% whole
person impairment.
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17, 2012, Bobby Miller, M.D., performed a forensic neuropsychiatry evaluation and opined that
Mr. Robinson sustained 2% whole person impairment as a result of minimal residual cognitive
impairment.

        On April 1, 2013, the claims administrator denied Mr. Robinson’s request for a
permanent total disability award in reliance upon the Permanent Total Disability Review Board’s
conclusion that Mr. Robinson failed to satisfy the 50% whole person impairment threshold
necessary for further consideration of a permanent total disability award pursuant to West
Virginia Code § 23-4-6(n)(1) (2005). In its Order affirming the April 1, 2013, claims
administrator’s decision, the Office of Judges held that the evidence of record fails to establish
that Mr. Robinson has met the statutory 50% whole person impairment threshold necessary for
further consideration of a permanent total disability award. The Board of Review affirmed the
reasoning and conclusions of the Office of Judges in its decision dated March 27, 2014. On
appeal, Mr. Robinson asserts that the evidence of record demonstrates that he sustained more
than 50% whole person impairment as a result of his compensable injuries.

        Mr. Robinson amassed more than 50% in prior permanent partial disability awards,
which makes his application for a permanent total disability award reviewable by the Permanent
Total Disability Review Board pursuant to West Virginia Code § 23-4-6(n)(1). Further, West
Virginia Code § 23-4-6(n)(1) mandates that the Permanent Total Disability Review Board re­
evaluate Mr. Robinson for the purpose of determining whether he has sustained a minimum of
50% whole person impairment as a result of his compensable injuries. The April 1, 2013, claims
administrator’s decision clearly shows that Mr. Robinson was evaluated by the Permanent Total
Disability Review Board, and that the Permanent Total Disability Review Board determined that
he did not sustain the requisite 50% whole person impairment. However, as noted by the Office
of Judges, neither the initial nor the final recommendations of the Permanent Total Disability
Review Board were submitted into evidence. Moreover, Mr. Robinson has not alleged that the
findings of the Permanent Total Disability Review Board are in any way flawed. In the absence
of the Permanent Total Disability Review Board’s recommendations from the evidentiary record,
the Office of Judges considered the reports of Drs. Walker, Guberman, and Grady submitted by
Mr. Robinson in support of his appeal. The Office of Judges found that Dr. Grady’s February of
2012 evaluation represents the most current and comprehensive evaluation of Mr. Robinson’s
permanent impairment arising from the November 3, 2006, injury and therefore determined that
his recommendation of 34% whole person impairment merits determinative evidentiary weight.
The Office of Judges specifically noted that Dr. Grady’s findings indicate that Mr. Robinson’s
range of motion deficits have significantly improved following the 2007 evaluation performed by
Dr. Walker and the 2008 evaluation performed by Dr. Guberman. Finally, the Office of Judges
found that even with the inclusion of the additional impairment for the right eye and residual
cognitive impairment, Mr. Robinson still fails to reach the requisite 50% whole person
impairment threshold. We agree with the reasoning and conclusions of the Office of Judges as
affirmed and adopted by the Board of Review.

        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

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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: February 3, 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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