                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 11, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GARY L. HATFIELD,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0333	 (BOR Appeal No. 2046346)
                   (Claim No. 2000037525)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

GARY L. HATFIELD,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Gary L. Hatfield, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Gary M. Mazezka, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 17, 2012, in
which the Board affirmed an August 19, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 24, 2008,
decision granting Mr. Hatfield an additional 3% permanent partial disability award for his head
injury. 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. Hatfield was a heavy equipment operator for his own company. Mr. Hatfield suffered
an injury to his back, neck, and head when a backhoe he was loading slid backwards onto the
ground. Mr. Hatfield’s claim was initially held compensable for a lumbar sprain and
subsequently held compensable for a sprain of the neck. He received a 29% permanent partial
disability award for his injuries. Following the injury, Mr. Hatfield began complaining of
neurological problems relating to a head trauma he sustained during the injury. He complained of
dizziness, loss of memory, loss of sensation, trouble walking, and headaches. On June 18, 2007,
the Office of Judges held the claim compensable for the additional conditions of headaches and
head injury. Dr. Guberman then performed an independent medical evaluation on Mr. Hatfield.
Dr. Guberman found that Mr. Hatfield had 3% whole person impairment relating to his head
injury for loss of equilibrium and for headaches. The claims administrator granted Mr. Hatfield a
3% permanent partial disability award based on Dr. Guberman’s report. Dr. Poletajev then
performed an independent medical evaluation on Mr. Hatfield and found 21% whole person
impairment for Mr. Hatfield’s head injury based on his paroxysmal disorder and prolonged
alterations of consciousness affecting his daily living. The Office of Judges affirmed the decision
of the claims administrator on August 19, 2011. The Board of Review then affirmed the Order of
the Office of Judges on February 17, 2012, leading Mr. Hatfield to appeal.

        The Office of Judges concluded that Mr. Hatfield was not entitled to any greater than a
3% permanent partial disability award relating to his head injury. In making this determination
the Office of Judges relied on the independent medical evaluation of Dr. Guberman. The Office
of Judges considered the assessment and opinion of Dr. Poletajev. But the Office of Judges
found that Dr. Poletajev provided an unreliable assessment of Mr. Hatfield’s condition because
his report was selectively and uncritically based on the subjective and inconsistent complaints of
Mr. Hatfield. The Office of Judges found that Dr. Poletajev did not adequately reconcile his
conclusions with the medical facts in the case. The Office of Judges also found no indication that
Dr. Poletajev was qualified to provide an opinion of Mr. Hatfield’s neurological condition. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Hatfield has not presented sufficient evidence demonstrating that he is entitled to a
greater than 3% permanent partial disability award for his head injury. Although Dr. Poletajev
found that Mr. Hatfield had 21% whole person impairment relating to his head injury, his
assessment was found to be unreliable. There are numerous inconsistencies in the account of Mr.
Hatfield’s neurological problems and Dr. Poletajev’s assessment fails to critically consider these
inconsistencies. The assessment of Dr. Guberman provides a more thorough evaluation of Mr.
Hatfield’s impairment and his finding of 3% whole person impairment relating to the head injury
is more consistent with the record as a whole.

        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: December 11, 2013

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




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