                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                                May 1, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
AUDREY J. LIGHT,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1454	 (BOR Appeal No. 2047358)
                   (Claim No. 970030978)

WEST VIRGINIA OFFICE OF

INSURANCE COMMISSIONER

Commissioner Below, Respondent


and


MFFL, INC.,

Employer Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Audrey J. Light, by Ronald Harman, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Anna Faulkner, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 6, 2012, in
which the Board affirmed a June 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 18, 2010,
decision denying Ms. Light’s request for a permanent total disability award. 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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        Ms. Light sustained significant injuries to her lumbosacral spine on June 28, 1994, while
attempting to lift heavy supplies. On June 25, 2003, Ms. Light filed an application for permanent
total disability benefits. Following her injury, Ms. Light underwent numerous evaluations to
determine the extent of her disability.

        On January 5, 1999, S. Edward Said, M.D., performed an independent medical evaluation
and noted that Ms. Light has a limited capacity for sitting, standing, walking, and lifting. He
found that she is unable to return to her regular employment as a cashier, and further found that
her inability to return to her regular employment is related to the injuries to her lumbosacral
spine. Dr. Said concluded that Ms. Light may be able to engage in employment at a very light
physical demand level with lifting of no more than ten pounds on an occasional basis; no
reaching, bending, or twisting; and must have the opportunity to change position from sitting to
standing every hour. On February 3, 1999, vocational consultant Richard Poe, M.A., L.P.C.,
C.R.C., N.C.C., stated that he feels vocational rehabilitation would not be possible for Ms. Light
and further stated that she is not employable at the present time. On May 3, 1999, Benjamin
Rezba, M.D., one of Ms. Light’s primary care physicians, completed a disability assessment
questionnaire and opined that Ms. Light’s current physical limitations include a restriction on
lifting of no more than ten pounds occasionally; a limitation on standing/walking of no more
than three hours per day with position changes every hour; a limitation on sitting of no more than
five hours per day with position changes every hour; no climbing ladders, stooping, or crawling;
occasional climbing of two flights of stairs per hour, crouching, and reaching; and pushing and
pulling of no more than ten pounds occasionally.

       On May 10, 1999, Harold Slaughter, M.S., performed a psychovocational evaluation and
concluded that Ms. Light is not capable of engaging in gainful employment. He diagnosed Ms.
Light with anxiety disorder resulting from her lumbosacral injuries, major depressive disorder,
and dysthymic disorder. He opined that a combination of psychiatric and physical issues is
contributing to Ms. Light’s inability to engage in gainful employment.

        On May 28, 1999, physical therapist Jane Downey opined that Ms. Light’s condition is
worsening and she is unemployable at the present time. Bruce Guberman, M.D., performed an
independent medical evaluation on February 24, 2004, and determined that Ms. Light is
permanently and totally disabled as a result of her lumbosacral spine injuries. On July 2, 2004,
Ralph Salvagno, M.D., performed an independent medical evaluation and, after reviewing the
psychological and psychovocational assessments contained in Ms. Light’s medical record,
opined that Ms. Light does not appear capable of returning to any type of productive
employment. Also on July 2, 2004, Allan Levy, M.D., performed a psychiatric independent
medical evaluation and diagnosed Ms. Light with major depression related to her lumbosacral
spine injuries and opined that from a psychiatric perspective, Ms. Light is capable of returning to
gainful employment.

        On July 7, 2004, physical therapist Lauren Devart performed a functional capacity
evaluation and concluded that Ms. Light is employable at the light physical demand level so long
as she is afforded the ability to frequently change positions. Ms. Devart found that Ms. Light can
lift a maximum capacity of twenty pounds and can frequently lift a capacity of ten pounds; can
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stand or sit for less than three hours with frequent position changes; can push a maximum of
seventy-five pounds and can pull a maximum of forty-six pounds; can occasionally climb; can
frequently stoop, kneel, crouch, crawl, and bend; and can engage in unlimited reaching and
handling.

       Cheryl Hill, M.D., performed a final psychiatric independent medical evaluation on
August 22, 2007, and diagnosed Ms. Light with major depressive disorder. She opined that
although Ms. Light’s lumbosacral spine injury contributed to the presence of her current
psychiatric disorder, her depression predated the lumbosacral spine injuries. She then concluded
that Ms. Light is not disabled as a result of her psychiatric diagnosis.

        On June 16, 2008, Jason Roush, D.P.T., performed a functional capacity evaluation and
determined that Ms. Light is capable of engaging in gainful employment at the sedentary to light
physical demand level that would require minimal bending and squatting. He found that Ms.
Light was frequently able to lift approximately ten pounds, occasionally lift approximately
twenty pounds, sit for forty-five minutes, stand for ten minutes, and walk for five minutes. On
June 25, 2008, an independent vocational rehabilitation report was prepared by Genex Services.
In that report, it was determined that Ms. Light was capable of working at the sedentary to light
physical demand level, that she possesses transferrable vocational skills, and that there are
positions available that fall within her current set of skills and abilities.

        On August 18, 2010, the claims administrator denied Ms. Light’s request for permanent
total disability benefits. Finally, on January 19, 2011, Casey Vass, R.N., M.S., C.R.C., C.C.M.,
C.I.C.P., Q.R.P., performed a vocational assessment and concluded that Ms. Light cannot engage
in any type of gainful employment. He determined that Ms. Light has no transferrable vocational
skills and further concluded that the frequent changes in position that she would require are
incompatible with employment at the light to sedentary physical demand level.

        In its Order affirming the August 18, 2010, claims administrator’s decision, the Office of
Judges held that Ms. Light is capable of engaging in substantial gainful employment and is
therefore not permanently and totally disabled. Ms. Light disputes this finding and asserts that
the vocational evidence of record demonstrates that she is permanently and totally disabled
because she is incapable of engaging in gainful employment.

       Both the Permanent Total Disability Review Board and the Office of Judges determined
that Ms. Light met the requisite whole person impairment threshold necessary for further
consideration of a permanent total disability award. Therefore, the issue on appeal is whether
Ms. Light is capable of engaging in substantial gainful employment. Pursuant to West Virginia
Code § 23-4-6(n)(2) (2005), in order to receive a permanent total disability award, a claimant
must be unable to engage in substantial gainful employment.

       In making its determination, the Office of Judges relied on the opinions of Mr. Roush,
Ms. Devart, Dr. Hill, Dr. Levy, and Genex Services, all of whom indicated that Ms. Light is
employable at the sedentary to light physical demand level, albeit with multiple restrictions.
Further, the Office of Judges noted that Ms. Light has received social security disability benefits.
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However, an award of social security disability benefits, while entitled to considerable
evidentiary weight, is not conclusory evidence with regard to the receipt of a permanent total
disability award. Lambert v. Workers Compensation Division, 211 W.Va. 436, 448, 566 S.E.2d
573, 585 (2002). Moreover, after reviewing the evidentiary record, the Permanent Total
Disability Review Board also concluded that Ms. Light is employable at the sedentary to light
physical demand level with restrictions. After weighing all of the evidence of record, the Office
of Judges concluded that although Ms. Light cannot return to her pre-injury employment, the
vocational and psychiatric evidence of record demonstrates that she is capable of returning to
some type of substantial gainful employment at the sedentary to light physical demand level with
appropriate restrictions. The Board of Review affirmed the reasoning and conclusions of the
Office of Judges in its decision of December 6, 2012. We agree with the 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: May 1, 2014

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

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




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