                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
MICHAEL DENNIS CLINE,                                                         September 10, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 11-1625 (BOR Appeal No. 2045928)
                   (Claim No. 2005014708)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

INDEPENDENCE COAL COMPANY, INC.,
Employer Below, Respondent

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

        This appeal arises from the Board of Review’s Final Order dated November 4, 2011, in
which the Board affirmed an April 26, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 21, 2010,
Order denying the claim 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. Cline was employed as a coal miner/electrician for Independence Coal Company,
Inc. when he injured his back on September 20, 1997, while pulling a large electrical cable. Mr.
Cline applied for permanent total disability benefits. On October 21, 2010, the claims
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administrator denied his claim for failure to meet the required level of whole body medical
impairment for further consideration of permanent total disability benefits.

        The Office of Judges found that Mr. Cline had not met his burden in demonstrating that
he sustained a total 50% whole body impairment required for further consideration of permanent
total disability benefits. Mr. Cline appealed, arguing that he has met the whole body impairment
threshold to be considered for permanent total disability benefits. The West Virginia Office of
the Insurance Commissioner argues that Mr. Cline has not met the 50% whole body impairment
threshold necessary for further consideration of permanent total disability benefits. On December
31, 2004, Mr. Cline was granted a 3.3% hearing loss award. On September 9, 2005, Mr. Cline
was awarded a 16% psychiatric award. On July 28, 2009, Dr. Neal Jewell performed an
independent medical exam on Mr. Cline and found 20% whole body impairment for his back and
upper extremities. On October 14, 2010, the Permanent Total Disability Reviewing Body
recommended denial of Mr. Cline’s application due to failure to meet the required level of whole
body medical impairment. The Permanent Total Disability Board found that based upon the
American Medical Association’s Guides to the Evaluation of Permanent Impairment, (4th
Edition, 1993), that Mr. Cline had sustained a total of 32% whole person impairment for all of
his occupational injuries. On April 8, 2010, the Permanent Total Disability Board specifically
recommended a combined 15% whole person impairment for the lumbar spine and cervical
spine; 12% whole person impairment for the right hand; 5% psychiatric impairment; and a 4%
hearing loss impairment. The Permanent Total Disability Board found that Mr. Cline did not
suffer from a medical impairment of at least 50% on a whole body basis and has not sustained a
35% or greater statutory disability, and therefore has failed to meet the required level of whole
body medical impairment threshold for further consideration of permanent total disability
benefits.

        The Office of Judges found that Mr. Cline does not have a combined total of 50% whole
body impairment required for further consideration of permanent total disability benefits. The
Office of Judges noted that Mr. Cline’s evidence was not persuasive in demonstrating that he has
at least 50% whole person impairment. The Board of Review reached the same reasoned
conclusion. We agree that Mr. Cline has not met the 50% whole body impairment threshold
required for further consideration of permanent total disability benefits.

        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: September 10, 2013




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

DISQUALIFIED
Chief Justice Brent D. Benjamin




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