                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                  October 26, 2016

LARRY A. HAMRICK,                                                              RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

Claimant Below, Petitioner                                                       OF WEST VIRGINIA



vs.)   No. 15-0868 (BOR Appeal No. 2050261)
                    (Claim No. 2000046653)

EASTERN ASSOCIATED COAL, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION

       Petitioner Larry A. Hamrick, by Robert L. Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Eastern Associated Coal, LLC, by, its
attorney, Henry C. Bowen, filed a timely response.

       This appeal arises from the Board of Review’s Final Decision dated August 20, 2015, in
which the Board affirmed a February 13, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 7, 2013,
decision denying the 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
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Hamrick filed an application for a permanent total disability award on March 3,
2003, after sustaining multiple work-related accidents over the course of the years. Mr. Hamrick
was incarcerated for an unknown period of time between the date his application was filed and
November 4, 2008, when he was evaluated by Charles Werntz., M.D. In the social history
section of his report, Dr. Werntz stated, “[o]f note, this claimant apparently had been awarded [a]
Social Security Disability award in the past. He was subsequently incarcerated and his Social
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Security Disability benefits were suspended. Those benefits have not been restarted at this time.
He is currently residing in a halfway house, and we were required to notify them of his arrival
and departure from our clinic.” Dr. Werntz assessed Mr. Hamrick’s whole body impairment
according to both the Tables found in West Virginia Code of State Rules §85-20 (2005) and the
range of motion model of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993). Dr. Werntz then assessed a combined whole body
impairment of 28%, using the tables found in West Virginia Code of State Rules §85-20.

        On May 20, 2010, Charles Weise, M.D., performed a psychiatric evaluation. He
diagnosed Mr. Hamrick with depressive disorder and assessed 3% permanent impairment. The
Permanent Total Disability Review Board issued its final recommendations on March 18, 2011.
It adopted the impairment ratings assigned by Dr. Werntz and Dr. Weise, with one exception. It
felt that Mr. Hamrick should have been assessed 5% impairment for the thoracic spine, which
would make the total combined impairment for the orthopedic conditions 31%. The Permanent
Total Disability Review Board then concluded that Mr. Hamrick sustained 34% whole person
impairment. Therefore, he failed to meet the 40% whole person impairment threshold required
for further consideration of a permanent total disability award pursuant to West Virginia Code
§23-4-6(n)(1) (2005). On April 8, 2011, the claims administrator denied Mr. Hamrick’s request
for a permanent total disability award.

        Mr. Hamrick protested the claims administrator’s denial of his request for a permanent
total disability award. On September 26, 2011, the Office of Judges reversed the claims
administrator’s decision. The Office of Judges relied on Dr. Werntz’s evaluation and agreed with
his assessment methods regarding the impairment. However, it determined that Dr. Werntz
should have used the range of motion model of the American Medical Association Guides in
assessing the final whole body impairment rating because that was the legal standard in effect
when Mr. Hamrick submitted his application for a permanent total disability award. Using that
model, the Office of Judges determined Mr. Hamrick had 55% whole person impairment, which
met the threshold required for consideration of a permanent total disability award. Therefore, the
Office of Judges ordered the claims administrator to refer Mr. Hamrick to the Permanent Total
Disability Review Board for an evaluation.

        On April 6, 2012, the Board of Review found that the Permanent Total Disability Review
Board utilized the Tables contained in West Virginia Code of State Rules §85-20 in assessing
whole person impairment but that the Office of Judges found it unfair to do so. Therefore, the
Board of Review remanded the claim to the claims administrator with instructions for the claims
administrator to refer Mr. Hamrick to the Permanent Total Disability Review Board for
reconsideration. It further ordered the Permanent Total Disability Review Board to address the
issue of whether the Tables found in the West Virginia Code of State Rules §85-20 or the range
of motion model of the American Medical Association’s Guides should be applied in assessing
impairment.

       After reconsideration, the Permanent Total Disability Review Board issued its final
recommendations on February 11, 2013. It did not specifically address the issue presented to it
by the Board of Review. However, it concluded Mr. Hamrick sustained 54% whole person
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impairment, thus relying on the range of motion model of the American Medical Association’s
Guides in determining the whole person impairment to be considered in making its
recommendations. After determining Mr. Hamrick met the medical impairment threshold, it
turned to a vocational review.

        The Permanent Total Disability Review Board reviewed the Functional Capacity
Evaluation performed on September 28, 2001, by Parker Grimes, M.S., O.T. The evaluation
demonstrated Mr. Hamrick had the ability to perform at a medium level, although a functional
limitation of pain was reported. It reviewed the October 30, 2001, report of Charles Lefebure,
M.D., who opined that rehabilitation would be appropriate to return Mr. Hamrick to active,
functional employment. It reviewed the February 22, 2002, medical record of Kevin Clarke,
M.D., stating Mr. Hamrick should continue physical therapy and work hardening. It reviewed the
report of Jack Koay, M.D., who evaluated Mr. Hamrick on November 11, 2002. Dr. Koay noted
Mr. Hamrick was unemployed due to problems with his neck, that he did not want to work
anymore, and that he wanted to retire. Dr. Koay diagnosed mild left carpal tunnel syndrome and
mild left sensory ulnar neuropathy.

       The Permanent Total Disability Review Board also reviewed the report of Dr. Werntz,
who encouraged Mr. Hamrick to return to work, even though he had adopted a disabled lifestyle
and exhibited multiple pain behaviors. Dr. Werntz opined Mr. Hamrick would have difficulty
with jobs that required significant walking, that required much lifting, or that required carrying
over ten pounds. It reviewed the results of a Total Disability Functional Capacity Evaluation that
was performed on April 17, 2009, by Art Lilly, P.T. Mr. Lilly noted Mr. Hamrick was able to
perform light demand activities. However, the test was self-limiting with reports of high pain
levels even though Mr. Hamrick’s blood pressure and heart rate were within normal limits.
Therefore, the report should not be used for vocational planning. Mr. Lilly noted Mr. Hamrick’s
psychosocial issues outweighed his functional capabilities.

        The Permanent Total Disability Review Board also reviewed the vocational report of
Leslie Stahl, M.A. Her October 29, 2009, report states, “[a]s far as his incarceration was
concerned, Mr. Hamrick relayed that he was in a fight in 2006, and was granted a felony record.
Then he was caught with ten guns, eight were registered in his name, and he was sentenced to 62
months in federal prison, and is now on probation.” Ms. Stahl identified sedentary/light jobs that
might be available to Mr. Hamrick, including cashier, host, demonstrator, sales representative,
security guard, and dispatcher. In her opinion, Mr. Hamrick retained a great deal of hands-on
mechanical skill. In addition, she believed he would be a candidate for vocational rehabilitation.

        The Permanent Total Disability Review Board found Mr. Hamrick had a GED with some
limitations in reading and that he was able to function at the light physical demand level.
Therefore, Mr. Hamrick was not permanently and totally disabled. It recommended Mr.
Hamrick’s application for permanent total disability benefits be denied. On March 7, 2013, the
claims administrator denied Mr. Hamrick’s request for a permanent total disability award.

       The Office of Judges affirmed the claims administrator’s decision in its February 13,
2015, Order. It noted that a records review was performed by Lisa Goudy, M.S., C.R.C., L.P.C.,
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on November 18, 2013, regarding the employability of Mr. Hamrick. She did not believe he
would be able to return to substantial employment given his age, education, work experience,
and the residual effects of his injuries. She did not believe vocational rehabilitation was
advisable.

         The Office of Judges noted that the exact level of Mr. Hamrick’s physical functioning
was unclear from the record. Dr. Werntz found that Mr. Hamrick would have “quite a bit of
difficulty with jobs that required a significant amount of walking as well as jobs that require
much lifting or carrying over ten pounds”. This was interpreted by both vocational evaluators as
limiting Mr. Hamrick to sedentary work only, which was an interpretation with which the Office
of Judges did not agree. The Office of Judges, therefore, took the findings of Dr. Werntz and
applied them to the job openings suggested in the record, taking the vocational factors that may
be impediments to obtaining a job into consideration. This included the fact that Mr. Hamrick
obtained his GED but had difficulty with reading, that he had no training outside of the coal
mining industry, and that he had limited transferable job skills. The Office of Judges noted the
ability to obtain and sustain a particular type of employment is not relevant. It noted the report of
Ms. Stahl was over five years old and the report of Ms. Goudy did not include a job survey.
However, using jobs identified by Ms. Stahl, the Office of Judges determined Mr. Hamrick
would not be precluded from working as a dispatcher, greeter, sales representative, or
demonstrator. Therefore, the Office of Judges determined Mr. Hamrick failed to demonstrate that
he is permanently and totally disabled.

         The Office of Judges also took issue with the extended period of time between the date of
the filing of the application and the date of the final decision by the claims administrator. It noted
it took ten years for the claims administrator to issue its decision. It also noted it was unclear
how much of a delay was caused by Mr. Hamrick’s incarceration, but the delay resulted in a
dated record.

        The Board of Review adopted the findings of fact and conclusions of the Office of Judges
in its August, 20, 2015, decision and affirmed the Order. After review, we agree with the
reasoning of the Office of Judges and the conclusions of the Board of Review. The denial of Mr.
Hamrick’s request for a permanent total disability award is supported by the evidence,
particularly the Permanent Total Disability Review Board’s review of the evidence and its
recommendation.

        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.


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ISSUED: October 26, 2016

CONCURRED IN BY:
Justice Robin J. Davis

Justice Margaret L. Workman

Justice Allen H. Loughry II



DISSENTING:

Chief Justice Menis E. Ketchum


Justice Brent D. Benjamin, Not Participating





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