                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 May 22, 2013

                                                                            RORY L. PERRY II, CLERK

STANLEY D. HENDRICKS,                                                     SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-1183 (BOR Appeal No. 2045600)
                   (Claim No. 2005017526)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER

Commissioner Below, Respondent


and


PATTON, INC.,

SPARTAN MINING COMPANY, and

WORKMAN’S CONSTRUCTION, INC.,

Employers Below, Respondent



                             MEMORANDUM DECISION
      Petitioner Stanley D. Hendricks, by John Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon Snyder, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 20, 2011, in which
the Board affirmed a February 15, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s July 10, 2008, decision
denying Mr. Hendricks’s application 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

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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Hendricks applied for a permanent total disability award on January 24, 2007, stating
that he had been granted a total of 62% in permanent partial disability awards. The Permanent
Total Disability Review Board on June 16, 2008, found that the evaluations of Drs. Landis and
Faheem were the most accurate assessments of Mr. Hendricks’s whole body medical impairment
from his occupational injuries and/or diseases. It concluded that Mr. Hendricks suffered from
29% whole body medical impairment, and recommended denying further consideration of a
permanent total disability award. On July 10, 2008, the claims administrator denied the
application for a permanent total disability award.

        The Office of Judges affirmed the claims administrator’s Order, and held that the
preponderance of the evidence did not establish that Mr. Hendricks had met the 50% whole body
medical impairment threshold required for further consideration of a permanent total disability
award. On appeal, Mr. Hendricks disagrees and asserts that it was incorrect to not rely on Dr.
Guberman’s report, and according to such report he suffers from 51% whole body medical
impairment and is entitled to further consideration of a permanent total disability award. The
West Virginia Office of Insurance Commissioner maintains that Mr. Hendricks has not shown
that the Permanent Total Disability Review Board is clearly wrong. Dr. Guberman on July 13,
2010, found that Mr. Hendricks suffered from 51% whole body medical impairment from his
compensable injuries and conditions. In his report, he noted that Mr. Hendricks had received a
15% permanent partial disability award for occupational hearing loss.

        Under West Virginia Code § 23-4-6(n)(1) (2005), to qualify for a permanent total
disability award, the applicant must be found to suffer from 50% whole body medical
impairment due to occupational injuries or diseases. The Permanent Total Disability Review
Board found that Mr. Hendricks suffered from only 29% whole body medical impairment. The
Office of Judges held that the preponderance of the evidence does not establish that Mr.
Hendricks met the statutory threshold. It noted that Dr. Guberman’s report incorrectly stated that
Mr. Hendricks received a 15% permanent partial disability award for occupational hearing loss,
and that he had only received a 12% permanent partial disability award. It further noted that Dr.
Guberman was the only physician to find impairment in the thoracic spine and facial laceration.
The Office of Judges concluded that Dr. Guberman’s report when corrected did not support a
finding that Mr. Hendricks had 50% whole body medical impairment, and thus affirmed the
denial of the application for a permanent total disability award. The Board of Review reached the
same reasoned conclusions in its decision of July 20, 2011. We agree with the reasoning and
conclusions of 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
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.


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                                                    Affirmed.

ISSUED: May 22, 2013

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

Chief Justice Brent D. Benjamin, Disqualified




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