                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 7, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
RICHARD E. EADS,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1102 (BOR Appeal No. 2048334)
                   (Claim No. 970056589)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

WILDERNESS MINING COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Richard E. Eads, by John H. Shumate Jr., his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Mary Rich Maloy, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated September 26, 2013, in
which the Board affirmed an April 23, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 19,
2012, decision denying Mr. Eads’s request for permanent total disability benefits. 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. Eads worked as a mine foreman for Wilderness Mining Company. On March 28,
1997, Mr. Eads injured his knees while pulling on a water hose. The claims administrator
initially granted Mr. Eads a 20% permanent partial disability award for his left knee condition.
However, after a course of litigation, Mr. Eads’s award was increased to 51% to account for the
impairment in both his knees. This increased award was based on an evaluation by Yogesh
Chand, M.D. Mr. Eads was also granted a 1% permanent partial disability award for a laceration
to his right little finger and a presumptive 5% permanent partial disability award for occupational
pneumoconiosis. Based on these injuries, Mr. Eads filed an application for permanent total
disability benefits, alleging that he had a sum of 57% in prior permanent partial disability
awards. Mr. Eads’s application was submitted to Jerry W. Scott, M.D., who determined that Mr.
Eads had 20% whole person impairment under the American Medical Association’s Guides to
the Evaluation of Permanent Impairment (4th ed. 1993) related to each of his knees. Dr. Scott
based this determination on finding that Mr. Eads had total knee replacements in both knees but
had fair recovery results from both surgeries.

        The Permanent Total Disability Reviewing Board evaluated Mr. Eads and determined
that he had a combined 36% whole person impairment rating related to his knee injuries based on
Dr. Scott’s assessment. It then combined the percentage for Mr. Eads’s bilateral knee impairment
with a 1% whole person impairment rating for his little finger laceration. The Reviewing Board
found that Mr. Eads had 37% whole person impairment related to his occupational injuries. It did
not include any impairment for occupational pneumoconiosis in this calculation because his 5%
award was presumptive and there was no evidence of impairment related to the condition. On
September 19, 2012, the claims administrator denied Mr. Eads’s application for permanent total
disability benefits because he had not met the 50% whole person impairment threshold. On April
23, 2013, the Office of Judges affirmed the claims administrator’s decision. The Board of
Review affirmed the Order of the Office of Judges on September 26, 2013, leading Mr. Eads to
appeal.

        The Office of Judges concluded that Mr. Eads did not meet the 50% whole person
impairment threshold necessary to sustain his permanent total disability benefits application. In
reaching this determination, the Office of Judges relied on the final recommendation of the
Reviewing Board. The Office of Judges determined that Dr. Scott’s evaluation, which formed the
basis of the Reviewing Board’s findings, was reliable. The Office of Judges found that Mr. Eads
did not present any evidence that he had suffered a higher whole person impairment rating. The
Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        On appeal, Mr. Eads argues that he is entitled to further consideration of his permanent
total disability benefits application because he has been granted greater than a sum of 50% in
prior permanent partial disability awards. Mr. Eads argues that there is no statutory basis for
requiring that he suffer 50% whole person impairment.

       We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Eads has not demonstrated that he suffered 50% whole person impairment as a result
of his occupational injuries as required under West Virginia Code § 23-4-6(n)(1) (2005). Mr.
Eads is not entitled to any additional consideration of his permanent total disability benefits
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application. The evaluation of Dr. Scott is the most relevant and reliable evidence of Mr. Eads’s
whole person impairment in the record. The Office of Judges and the Reviewing Board properly
relied on his impairment finding. Although Mr. Eads has presented a significant amount of
evidence that he has been granted more that 50% in permanent partial disability awards, this
evidence is not relevant in determining whether he has suffered 50% whole person impairment as
a result of his occupational injuries. Mr. Eads’s argument on appeal is inconsistent with the plain
language of West Virginia Code § 23-4-6(n)(1).

        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: May 7, 2015

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




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