                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               July 15, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ROY D. LAWSON,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1316 (BOR Appeal No. 2045729)
                   (Claim No. 2002010943)

US STEEL CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Roy D. Lawson, by John Shumate Jr., his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. US Steel Corporation, by Howard
Salisbury Jr., its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated August 22, 2011, in
which the Board affirmed a March 21, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 15,
2008, decision denying Mr. Lawson’s application 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.

        Mr. Lawson worked in the coal mining industry for over twenty years. During that time,
he incurred multiple occupational injuries and diseases. On November 24, 2008, the Permanent
Total Disability Review Board found that Mr. Lawson met the statutory threshold for whole
body impairment, but that Mr. Lawson is able to engage in gainful employment requiring skills
or abilities which can be acquired. Therefore, the issue on appeal is whether Mr. Lawson is
capable of engaging in substantial gainful employment. Pursuant to West Virginia Code § 23-4­

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6(n)(2) (2005), in order to receive permanent total disability benefits, a claimant must be unable
to engage in substantial gainful employment.

        On May 10, 2002, Mr. Lawson was evaluated by Ms. Bailey at HealthSouth who found
that he was able to perform work in the heavy PDL for an eight hour day. An April 25, 2008,
vocational rehabilitation report found that Mr. Lawson can engage in substantial gainful activity,
and that there are jobs in the defined labor market within his transferable skills and physical
demand level of heavy per the May 10, 2002, functional capacity evaluation. Mr. Wooton
performed a functional capacity evaluation on September 9, 2008, and found that Mr. Lawson
can perform at a full sedentary position. In an October 22, 2008, vocational report, Mr. Williams
found that Mr. Lawson is totally disabled from all types of work. Mr. Lawson was found totally
disabled by a vocational evaluation by Mr. McMillion on June 3, 2009. In a February 22, 2010,
rehabilitation evaluation, Ms. Westfall found that the medical evidence does not support a
finding of permanent total disability and that Mr. Lawson has the ability to return to the
workforce. On May 19, 2010, Mr. Price performed a vocational rehabilitation evaluation and
found that Mr. Lawson is not permanently and totally disabled, that he is capable of working
fulltime at a sedentary-light work classification, and that there are jobs available in the labor
market for which he is currently qualified or could become qualified through short-term training.
Mr. Price noted that a referral to vocational services was likely to be met with resistance as Mr.
Lawson maintains the opinion that he is not capable of returning to any employment in any
capacity.

        In affirming the claims administrator’s Order, the Office of Judges held that the
preponderance of the credible evidence established that Mr. Lawson can participate in substantial
gainful activity in the sedentary range of exertion within seventy-five miles of his residence. On
appeal, Mr. Lawson disagrees and asserts that given the severity of his physical impairment, the
severity of his pain, the inability to use his hands at a steady regular pace, and lack of
transferable job skills, it is vocationally unrealistic to conclude that there is other work for which
he is suited. US Steel Corporation maintains that the preponderance of the evidence demonstrates
that Mr. Lawson retains the physical capability to perform at least light demand level work, and
there are jobs available to him that are within his physical and vocational capability to perform.

        The Office of Judges concluded that the preponderance of the evidence fails to establish
that Mr. Lawson is permanently and totally disabled from performing work in at least the
sedentary range of exertion when considering all relevant vocational factors. The Office of
Judges noted that there was no medical evidence that Mr. Lawson is incapable of performing
work in at least the sedentary range of exertion. It further noted that Mr. Lawson has developed
several significant non-occupational conditions such as uncontrolled hypertension and
congestive heart failure requiring hospitalization, and that he exerted less than full effort during
several functional capacity evaluations. The Office of Judges concluded that the preponderance
of the vocational evidence established that the compensable injuries and diseases have not
reduced his capacity to work below the full range of sedentary exertion jobs, and that jobs
matching that level of exertion requiring no greater skills than those he possesses or can obtain
are available within seventy-five miles of his residence. The Board of Review reached the same

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reasoned conclusions in its August 22, 2011, Order. We agree with the reasoning and
conclusions of the Board of Review.

        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: July 15, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum




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