                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                               August 13, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
LARRY R. DILLON,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0425 (BOR Appeal No. 2047693)
                   (Claim No. 830018801)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

RHYAN BETH COAL COMPANY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Larry R. Dillon, 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 Anna L. Faulkner, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 2, 2013, in which
the Board affirmed a September 17, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 14, 2011,
decision denying Mr. Dillion’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.

                                                1
         Mr. Dillon worked for thirty years as an underground coal miner. On October 11, 1982,
he sustained an injury to his lower back and left knee which the claims administrator held
compensable. Following this injury, he ceased working in the coal mining industry and became a
self-employed contractor for twelve years. Mr. Dillon then filed an application for permanent
total disability benefits. His claim was submitted to Bobbi Jo Chapman, OTR/L, for a functional
capacity evaluation. Ms. Chapman found that Mr. Dillon was capable of performing work at the
sedentary physical demand level. Paul E. Forberg, M.D., performed an independent medical
evaluation and found that Mr. Dillon was not able to return to work. Drema Bess, M.A.,
performed a vocational rehabilitation assessment based on Ms. Chapman’s evaluation and found
that Mr. Dillon’s work history suggested that he had transferable skills which would permit him
to obtain alternative employment at several entry level positions. Ms. Bess also found that he had
the ability to learn new skills and supervise workers. Dora L. Hughes, M.S., also performed a
functional capacity evaluation and determined that Mr. Dillon could work at the sedentary
physical demand level. Ms. Hughes found that Mr. Dillon had some limitations in his ability to
sit for an extended period of time but that he was capable of sitting for one to three hours and of
standing for less than one to three hours. Lisa Hammers, M.S., then performed a vocational
rehabilitation assessment and found that Mr. Dillon had transferable skills, especially from his
self-employment as a contractor, including customer service and record keeping. Ms. Hammers
identified several jobs that Mr. Dillon was capable of performing within seventy-five miles of his
residence, including a customer service representative position. On January 14, 2011, the claims
administrator denied Mr. Dillon’s application for permanent total disability benefits. Following
this denial, Errol Sadlon performed a vocational rehabilitation assessment and determined that
Mr. Dillon was not capable of working as a customer service representative because he was not
able to sit for long periods of time. Mr. Sadlon also indicated that the jobs Ms. Hammers
identified were further than seventy-five miles from Mr. Dillon’s residence. Mr. Sadlon further
stated that Mr. Dillon was not capable of gainful employment because of his age. Ms. Hammers
then issued an addendum vocational rehabilitation assessment indicating that Mr. Dillon’s age
would not prevent him from working at the sedentary physical demand level. On September 17,
2012, the Office of Judges affirmed the claims administrator’s decision. The Board of Review
affirmed the Order of the Office of Judges on April 2, 2013, leading Mr. Dillon to appeal.

        The Office of Judges concluded that Mr. Dillon retained the requisite physical ability to
perform work at the sedentary demand level and occupational opportunities within that demand
level exist within seventy-five miles of his residence. The Office of Judges determined, based on
the functional capacity evaluations of Ms. Chapman and Ms. Hughes, that Mr. Dillon could work
at the sedentary physical demand level with limitations regarding his ability to sit and stand. The
Office of Judges also determined that Ms. Hammers’s vocational rehabilitation assessment
showed that Mr. Dillon could work at the sedentary physical demand level because he could sit
most of the time during the day and stand on occasion. It also determined that Ms. Hammers’s
assessment was reliable because it was consistent with authoritative sources on what constitutes
sedentary activities. The Office of Judges further determined, based on Ms. Hammers’s
assessment, that there were jobs within seventy-five miles from Mr. Dillon’s residence. The
Office of Judges considered Mr. Sadlon’s vocational rehabilitation assessment, but it found Mr.
Sadlon placed too much weight on Mr. Dillon’s age. It found that Mr. Sadlon did not sufficiently

                                                2
support his assertion that the jobs identified by Ms. Hammers were outside his geographic area.
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. The evidence in the record demonstrates that Mr. Dillon is not permanently and totally
disabled rendering him unable to engage in substantial gainful employment. Ms. Hughes’s
functional capacity evaluation is sufficient to establish that Mr. Dillon is capable of performing
work at the sedentary physical demand level with some restrictions on his ability to sit and walk
for extended periods of time. The independent medical evaluations of Dr. Forberg and the
vocational assessment of Mr. Sadlon are not sufficiently persuasive to undermine the credibility
of Ms. Hughes’s report. The Office of Judges was justified in relying on her opinion. Ms.
Hammers’s vocational rehabilitation assessment, furthermore, identified several employment
opportunities which Mr. Dillon is capable of performing within a driving distance of seventy-five
miles from his residence.

        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: August 13, 2014

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

DISSENTING:
Justice Margaret L. Workman




                                                3
