                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 12, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TRUMAN BAYS,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0054 (BOR Appeal No. 2047449)
                   (Claim No. 2001037787)

PERFORMANCE COAL COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Truman Bays, by John H. Shumate Jr., his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Performance Coal Company, by Paul
Pinson, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 18, 2012, in
which the Board affirmed a July 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 18, 2010,
decision which denied a 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. Bays, a maintenance foreman and coal miner, developed occupational
pneumoconiosis in the course of his employment. He also sustained an injury to his lumbar
spine. Mr. Bays was granted a permanent partial disability award of 40% for occupational
pneumoconiosis and a 5% award for his lumbar spine injury. Mr. Bays applied for a permanent
total disability award based upon these permanent partial disability awards. The claims
administrator denied the request on October 18, 2010.

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        The Office of Judges affirmed the claims administrator’s denial in its July 19, 2012,
Order. In order to be eligible for a permanent total disability award, a claimant must first have
been awarded the sum of 40% or more in prior permanent partial disability awards. West
Virginia Code § 23-4-6(n)(1) (1999). Second, a claimant must then be reevaluated by a
Reviewing Board to determine if they have suffered 40% whole body medical impairment or
more. West Virginia Code § 23-4-6(n)(1).1 The Office of Judges found that Mr. Bays met both of
these requirements. In order to meet the third requirement it must be established that he is unable
to return to substantial gainful employment. West Virginia Code § 23-4-6(n)(2) (2005).

        Whether a claimant can return to substantial gainful employment is determined using
three steps. First, it must be determined if the claimant can return to his past employment. West
Virginia Code §23-4-6(n)(2). Both functional capacity evaluations on record indicate Mr. Bays
is functioning at the light physical demand level but may progress to the medium physical
demand level with work conditioning. However, there is no medical evidence to show that he
could return to his previous work in the coal mines due to his occupational pneumoconiosis. The
Office of Judges therefore held that he could not return to his pre-injury work in the coal mines.

         The second step is to determine if the claimant can return to any type of work from a
physical stand point. West Virginia Code §23-4-6(n)(2). The Office of Judges determined that
Mr. Bays could return to sedentary/light work with material handling restrictions based on
pulmonary pathology. N. Arthur Lilly, M.S., A.T.C., found in a 2006 functional capacity
evaluation that Mr. Bays was not permanently and totally disabled because he could operate at
the light physical demand level. In a re-evaluation in 2011, he again found Mr. Bays could
perform at the light physical demand level with material handling restrictions. Mr. Bays’s
treating physician, George Zaldivar, M.D., noted in his treatment notes that Mr. Bays had certain
limitations due to shortness of breath. This was found to be contradictory to Mr. Lilly’s 2006
functional capacity evaluation findings because he noted that Mr. Bays had no shortness of
breath. The Office of Judges also found that Dr. Zaldivar’s notes largely consist of checked
boxes and illegible notes. There are no narrative reports in which he expresses an opinion as to
whether Mr. Bays could return to any type of employment. He did, however, indicate he could
not be exposed to extreme temperatures, chemicals, dust, fumes, or humidity. The Office of
Judges found that the restrictions do not rule out every job in the sedentary/light physical
demand level. Therefore, it held that Mr. Bays can perform light or sedentary jobs with some
restrictions.

        The third step is to determine if a claimant can be vocationally rehabilitated or has the
vocational potential to return to work. West Virginia Code §23-4-6(n)(2). Mr. Bays argued
before the Office of Judges that a vocational assessment by James Williams, M.Ed., L.P.C.,
C.R.C., failed to take into consideration the fact that Mr. Bays functions at low levels of reading,
spelling, and math. The Office of Judges found that Mr. Williams was aware of the limitations
and considered them in his determination that Mr. Bays was not permanently and totally
disabled. Mr. Williams found that he demonstrates the capacity to learn, reason, and adapt to
work. A labor market survey was performed by Casey Vass, R.N., M.S., C.R.C., C.L.C.P.,

1
    Mr. Bays filed his claim prior to the 2005 amendments. He is therefore only required to meet the 40% threshold.
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Q.R.P., in which it was found that Mr. Bays is not employable in the competitive labor market,
and his work-gained skills are not transferable to other jobs. The Office of Judges found that he
failed to indicate where the jobs were located. Mr. Vass also found that Mr. Bays lacks the skills
and aptitude for office work. However, the Office of Judges determined that Mr. Bays has shown
the knowledge and skill to obtain certifications as an electrician and fire boss during the course
of his employment. This indicates the ability to increase his educational level. It was noted that
Mr. Vass failed to complete the transferable skills analysis. Michael Price, M.A., Q.R.P.,
performed the most recent vocational assessment of record on December 21, 2011. He
determined that Mr. Bays was not permanently and totally disabled because he was capable of
performing fulltime light physical work. Mr. Price did a labor market survey within a seventy-
five mile radius of Mr. Bays’s home and found that jobs were available for which he would be
qualified or could become qualified through short-term training.

       Based upon the vocational reports of Mr. Williams and Mr. Price, the Office of Judges
determined that Mr. Bays can return to substantial gainful employment and that there are jobs in
his geographical area for which he is qualified. He presented no functional capacity evaluation to
contradict either the 2006 or 2011 functional capacity evaluations. He is therefore not
permanently and totally disabled.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its December 18, 2012, decision. This Court agrees with the
reasoning and conclusions of the Board of Review. The evidence indicates that Mr. Bays is
capable of substantial gainful employment and therefore is 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: June 12, 2014

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

DISSENTING:
Justice Margaret L. Workman

Justice Brent D. Benjamin, disqualified


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