                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

WILMA G. HOLMES,                                                                          FILED
Claimant Below, Petitioner                                                           February 13, 2020
                                                                                   EDYTHE NASH GAISER, CLERK
                                                                                   SUPREME COURT OF APPEALS
vs.)   No. 19-0248 (BOR Appeal No. 2053401)                                            OF WEST VIRGINIA
                   (Claim No. 2000028138)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

AFG INDUSTRIES, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
     Petitioner Wilma G. Holmes, pro se, appeals the decision of the West Virginia Workers’
Compensation Board of Review (“Board of Review”). The West Virginia Office of Insurance
Commissioner, by Counsel Melissa M. Stickler, filed a timely response.

       The issue on appeal is permanent total disability. The claims administrator denied a
permanent total disability award on July 21, 2017. The Office of Judges reversed the decision in
its September 10, 2018, Order and remanded the case for an impairment evaluation of Ms.
Holmes’s vertigo. The Order was reversed by the Board of Review on January 31, 2019, and the
claims administrator’s denial of a permanent total disability award was reinstated.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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.


                                                 1
        Ms. Holmes, a nailer, suffered multiple injuries in the course of her twenty-eight years of
employment for AFG Industries, Inc. She has received the following permanent partial disability
awards: 10% for the right shoulder, 4% for the left shoulder, 7% for the left shoulder, 14% for the
cervical and lumbar spine, 20% for vertigo, and 11% for bilateral carpal tunnel syndrome. Ms.
Holmes has not been gainfully employed since 1998 and began receiving Social Security
retirement benefits on July 1, 2004. Ms. Holmes completed an application for a permanent total
disability award on October 5, 2005.

        Charles Werntz, M.D., performed an independent medical evaluation on June 22, 2007, in
which he noted that Ms. Holmes’s main issue was vertigo. Dr. Werntz diagnosed left shoulder
sprain, lumbar sprain, thoracic sprain, compression fracture of the L2 disc, right shoulder sprain,
bilateral carpal tunnel syndrome, and recurrent proximal vertigo. He noted that she had
noncompensable arthritis in the wrists. Dr. Werntz opined that Ms. Holmes had reached maximum
medical improvement and could work at the light physical demand level. He assessed 6%
impairment for the left upper extremity and 5% for the right upper extremity. For the lumbar spine,
Dr. Werntz noted that Ms. Holmes did not put forth maximum effort for range of motion
measurements. He found 7% impairment using Table 75 of the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993), 2% for left lateral range of
motion, and 1% for neurological deficits. The combined total lumbar impairment was 10%. Dr.
Werntz then apportioned 1% for degenerative changes for a total of 9% lumbar impairment. He
assessed 2% impairment for the thoracic spine and 10% for vertigo. His combined total impairment
rating was 29%.

        Ron Harbert, P.T., performed a functional capacity evaluation on January 9, 2013, in which
he determined that Ms. Holmes could operate at the sedentary physical demand level. However, it
was noted that she had limitations in strength and range of motion in her shoulders and spine. Mr.
Harbert opined that Ms. Holmes was unable to return to work due to pain and vertigo. A functional
capacity evaluation was performed by GENEX Services, Inc., on May 20, 2013. It was determined
that Ms. Holmes was unable to be gainfully employed. It was noted that she had no sedentary job
skills and could not work due to vertigo.

        On September 13, 2013, Stephen Wetmore, M.D., performed an independent medical
evaluation regarding Ms. Holmes’s vertigo. He found that she had experienced dizziness for the
past several years and that she had a stroke in 2007. He opined that she has proximal positional
vertigo but that it was not related to her work injury. He assessed 0% impairment for vertigo.

        Dr. Werntz performed a second independent medical evaluation on September 27, 2013,
in which he assessed 7% impairment for the cervical spine, 13% impairment for the lumbar spine,
8% impairment for the right shoulder, 8% impairment for the left shoulder, and 10% impairment
for vertigo. Regarding vertigo, Dr. Werntz stated that Ms. Holmes falls on the borderline of Classes
2 and 3 from page 229 of the American Medical Association’s Guides. His total impairment
recommendation was 39%.

       Kari Law, M.D., performed a psychiatric evaluation on February 28, 2014, in which she
diagnosed moderate major depressive disorder in partial remission with anxiety. She found that
                                                 2
Ms. Holmes was at maximum medical improvement and that her psychiatric impairment had a
mild effect on her daily living. Dr. Law assessed 3% psychiatric impairment related to a work
injury.

       The Permanent Total Disability Review Board issued its initial recommendations on May
12, 2014. It found that the assessments of Drs. Werntz, Wetmore, and Law were the most reliable
of record. The Board accepted Dr. Werntz’s findings of 18% lumbar impairment, 8% left upper
extremity impairment, 8% right upper extremity impairment, 7% cervical spine impairment, and
1% thoracic spine impairment. It also accepted Dr. Wetmore’s finding of 0% impairment for
vertigo and Dr. Law’s finding of 3% psychiatric impairment. The Board found that the
impairments combined for a total of 39% impairment. Therefore, Ms. Holmes failed to meet the
50% threshold for whole body impairment as required by West Virginia Code § 23-4-6(n)(1). The
Board recommended denying the request for a permanent total disability award.

        On June 11, 2014, Ms. Holmes objected to the Permanent Total Disability Review Board’s
findings, specifically, Dr. Wetmore’s opinion that her vertigo is not work-related. Ms. Holmes
noted that she had received a 20% permanent partial disability award for her compensable
condition of vertigo. She asserted that the opinions of Drs. Poletajev and Vaglienti, that she had
20% impairment due to vertigo, were more reliable. Ms. Holmes argued that Dr. Werntz’s finding
of 10% impairment for vertigo failed to properly consider the limitations in her activities of daily
living.

        The Permanent Total Disability Review Board issued its final recommendations on August
11, 2014. It again accepted Dr. Werntz’s findings of 18% lumbar impairment, 8% left upper
extremity impairment, 8% right upper extremity impairment, 7% cervical spine impairment, and
1% thoracic spine impairment. The Board also accepted Dr. Werntz’s finding of 10% impairment
for vertigo since his evaluation was the most recent of record. Finally, the Board accepted Dr.
Law’s assessment of 3% psychiatric impairment. Ms. Holmes’s total whole person impairment
was found to be 44%, again short of the 50% threshold. The Board therefore recommended that a
permanent total disability award be denied.

       On December 22, 2015, the Office of Judges issued a decision remanding the claim to the
Permanent Total Disability Review Board with instructions to have Ms. Holmes evaluated by an
otolaryngologist to determine the amount of permanent impairment she has due to vertigo. The
Office of Judges noted that Dr. Wetmore assessed 0% impairment for vertigo because he did not
believe the condition was related to the compensable injury. However, the condition is a
compensable component of the claim, and the Office of Judges determined that it should be rated
by a specialist.

       Dr. Wetmore, who is an otolaryngologist, performed an evaluation on April 24, 2017, in
which he determined that Ms. Holmes offered no objective evidence of vertigo. He stated that his
impairment assessment remained 0%. On July 10, 2017, the Permanent Total Disability Review
Board issued its final recommendations. It again accepted Dr. Werntz’s findings of 18% lumbar
impairment, 8% left upper extremity impairment, 8% right upper extremity impairment, 7%
cervical spine impairment, and 1% thoracic spine impairment. It also accepted Dr. Law’s
                                                 3
assessment of 3% psychiatric impairment. The Board stated Dr. Wetmore concluded that Ms.
Holmes has 0% impairment for vertigo and accepted his finding. Her total whole body impairment
was determined to be 34%.

         The claims administrator denied a permanent total disability award on July 21, 2017. The
Office of Judges reversed the claims administrator’s decision and remanded the case with
instructions to refer Ms. Holmes to a different otolaryngologist to determine her impairment due
to vertigo in its September 10, 2018, Order. The Office of Judges noted that the case was previously
remanded on December 22, 2015, for an evaluation by an otolaryngologist to determine the amount
of impairment Ms. Holmes suffers due to vertigo. In its prior Order, the Office of Judges found
Dr. Werntz’s findings to be ambiguous. Dr. Wetmore’s findings were determined to be unreliable
since he opined that Ms. Holmes’s vertigo was not work-related, despite the fact that the condition
has been held compensable. After remanding the case, Ms. Holmes was again sent to Dr. Wetmore
for an evaluation of her vertigo. The Office of Judges determined in the instant Order that Dr.
Wetmore’s second evaluation was unreliable. It found that Dr. Wetmore made no attempt to
administer testing for vertigo. In fact, Dr. Wetmore merely reiterated his opinion that the condition
is not the result of a compensable injury and referred to his earlier report in which he assessed 0%
impairment for vertigo. The Office of Judges held that his opinion is contrary to the law of this
case, which states that vertigo is a compensable condition, and therefore cannot be used to
determine Ms. Holmes’s impairment for vertigo.

        The Office of Judges noted that Dr. Werntz did an assessment for vertigo and arrived at a
conclusion of 10% impairment. However, in his second report, he stated that Ms. Holmes fell in
the border between Class 2 and Class 3 from page 229 of the American Medical Association’s
Guides. The Office of Judges determined that Dr. Werntz’s assessment was ambiguous because
Class 2 provides for 10% impairment and Class three provides 20% for impairment. Therefore,
the Office of Judges determined that the case should be remanded to the Permanent Total Disability
Review Board with instructions to refer Ms. Holmes to another otolaryngologist, one who is not
Dr. Wetmore, within forty-five days of the Order. Ms. Holmes’s whole person impairment was
then to be recalculated.

       The Board of Review reversed the decision of the Office of Judges and reinstated the claims
administrator’s denial of a permanent total disability award on July 31, 2019. Pursuant to West
Virginia Code § 23-4-24(a)

       [n]o claimant shall be awarded permanent total disability benefits arising under
       subdivision (d) or (n), section six of this article or section eight-c of this article who
       terminates active employment and is receiving full old-age retirement benefits
       under the Social Security Act, 42 U.S.C. §401 and 402. Any claimant shall be
       evaluated only for the purposes of receiving a permanent partial disability award
       premised solely upon the claimant's impairments. This subsection is not applicable
       in any claim in which the claimant has completed the submission of his or her
       evidence on the issue of permanent total disability prior to the later of the following:
       Termination of active employment or the initial receipt of full old-age retirement
       benefits under the Social Security Act. Once the claimant has terminated active
                                                   4
        employment and has begun to receive full old-age social security retirement
        benefits, the claimant may not produce additional evidence of permanent total
        disability nor shall the claim be remanded for the production of the evidence.

The Board of Review determined that Ms. Holmes last worked in 1998 and began receiving Social
Security retirement benefits on or about July 1, 2004. She submitted her application for a
permanent total disability award on October 5, 2005. Therefore, she is not eligible to receive a
permanent total disability award.

         After review, we agree with the reasoning and conclusions of the Board of Review.
Pursuant to West Virginia Code § 23-4-24(a), Ms. Holmes is barred from receiving a permanent
total disability award due to the fact that she retired and started receiving Social Security retirement
benefits prior to filing her application for a permanent total disability award.

         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 so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the Board of Review’s findings, reasoning and conclusions,
there is insufficient support to sustain the decision. Therefore, the decision of the Board of Review
is affirmed.



                                                                                             Affirmed.
ISSUED: February 13, 2020


CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




                                                   5
