                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
HAROLD JONES JR.,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0901 (BOR Appeal No. 2048179)
                   (Claim No. 990032323)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER,
Commissioner Below, Respondent

and

SUES RECLAMATION & CONSTRUCTION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Harold Jones Jr., 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 David L. Stuart, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 5, 2013, in
which the Board affirmed a February 28, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 5, 2012,
decision which denied 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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        Mr. Jones, a timber cutter, applied for a permanent total disability award on December
12, 2005. In his application, he stated that he had received the following permanent partial
disability awards: 2% for the left knee; 1% for the left leg; 1% for both legs; and 48% for
multiple injuries to the lower back, right leg, and left knee. He indicated that he was awarded
Social Security Disability benefits.

        Paul Bachwitt, M.D., performed a permanent total disability evaluation on January 28,
2009, in order to determine Mr. Jones’s whole body impairment. Dr. Bachwitt found that Mr.
Jones had reached maximum medical improvement for all of his compensable injuries. Dr.
Bachwitt felt that he could perform at least medium physical demand level work and that he was
not permanently and totally disabled. He assessed 2% impairment for a left tibial plateau
fracture, 13% lumbar spine impairment, 1% left knee impairment, and 5% right ankle
impairment for a combined total of 20% whole person impairment. Mr. Jones was also evaluated
by Mark Casdorph, D.O., a psychiatrist, in order to determine his total psychological impairment
due to the compensable injuries. Dr. Casdorph noted that Mr. Jones reported some irritability and
anxiety after his compensable injury, but the record indicated a prior medication exacerbated the
symptoms. Mr. Jones showed no signs of depression or anxiety at the time of the evaluation. Dr.
Casdorph found that he had no psychiatric illness due to a compensable injury and assessed 0%
impairment.

        The Permanent Total Disability Review Board released its final recommendation on
March 18, 2011. It found that Dr. Bachwitt’s report was the most current and accurate
assessment of Mr. Jones’s whole body impairment. The Board also found Dr. Casdorph’s report
to be reliable regarding psychiatric impairment. The Board determined that Mr. Jones had 23%
whole person impairment due to occupational injuries. The impairment was rated as follows:
13% for the lumbar spine, 3% for the left knee, 5% for the right leg, 5% for the right ankle, and
0% for psychiatric illness. The Board therefore determined that Mr. Jones failed to meet the
required 50% whole body impairment threshold required for further consideration of a
permanent total disability award and recommended denying the award. The claims administrator
thereafter denied Mr. Jones’s request for a permanent total disability award on March 30, 2011.

        The Office of Judges reversed the claims administrator’s decision in a November 4, 2011,
Order and remanded the case for further review based upon a determination that the findings of
the Permanent Total Disability Review Board were deficient. The Office of Judges stated that the
Board found that Dr. Bachwitt’s and Dr. Casdorph’s reports were the most reliable of record and
concluded that Mr. Jones had 23% whole body impairment. The report contained a chart
showing that Mr. Jones had 13% impairment for the lumbar spine, 3% for the left knee, 5% for
the right leg, 5% for the right ankle, and 0% for psychiatric illness. However, Dr. Bachwitt found
20% whole body impairment, which included 2% impairment for a left tibial plateau fracture,
13% lumbar spine impairment, 1% left knee impairment, and 5% right ankle impairment.
Without an explanation as to why the Permanent Total Disability Review Board adjusted the
impairment ratings, the Office of Judges found its report to be insufficient. The Office of Judges
also noted that the Board did not discuss the other reports of record. The Board was therefore
given the opportunity to clarify its reasoning for denying the application for permanent total
disability benefits.
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        The Permanent Total Disability Review Board re-examined the claim and released its
final recommendation on October 29, 2012. It stated that it reviewed the reports of George
Orphanos, M.D.; Clifford Carlson, M.D.; A. James Paine Jr., M.D.; Dr. Bachwitt; and Dr.
Casdorph and determined that Dr. Bachwitt’s report was the most accurate, current, and credible
assessment of Mr. Jones’s whole body orthopedic impairment. It also found that Dr. Casdorph’s
report was the most recent and accurate assessment of his psychological impairment. The Board
found that Mr. Jones sustained 15% impairment based upon Dr. Bachwitt’s report and adopted
that impairment rating for the lumbar spine instead. It also determined, based upon Dr.
Bachwitt’s report, that Mr. Jones’s left knee impairment was 1%, rather than the earlier reported
3% impairment. Further, it found 5% right ankle impairment and 2% impairment for a tibia
fracture for a total of 22% whole body impairment. Accordingly, Mr. Jones failed to meet the
50% whole body impairment threshold, and the Permanent Total Disability Review Board again
recommended that his request for a permanent total disability award be denied.

        The claims administrator denied Mr. Jones’s request for a permanent total disability
award on November 5, 2012. The Office of Judges affirmed the decision in its February 28,
2013, Order. The Office of Judges found that Mr. Jones has received 52% in permanent partial
disability awards. It therefore determined that he met the first threshold under West Virginia
Code § 23-4-6(n)(1) (2005), which requires a claimant to have received 50% or more in prior
permanent partial disability awards. However, the Office of Judges determined that Mr. Jones
failed to meet the second threshold, which requires that the claimant have 50% or more whole
body impairment. Whole body impairment is assessed by a reviewing board. In this case, the
Permanent Total Disability Review Board found that Mr. Jones had sustained only 22% whole
body impairment: 15% for the lumbar spine; 5% for the right ankle; 1% for the left knee; 2% for
the left tibia plateau fracture; and 0% for the left thumb, right hand/wrist, and psychiatric
impairment. Mr. Jones argued before the Office of Judges that he sustained a total of 52%
permanent partial disability as a result of his compensable injuries. The Office of Judges
determined that the Permanent Total Disability Review Board properly applied the statutory
considerations and the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993) to arrive at its determination. Mr. Jones was therefore found to not be
permanently and totally disabled because he failed to meet the second threshold of West Virginia
Code § 23-4-6(n)(1).

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its August 5, 2013, decision. This Court agrees with the
reasoning of the Office of Judges and the conclusions of the Board of Review. The evidentiary
record indicates that Mr. Jones is not permanently and totally disabled because he has not
sustained 50% or more whole body impairment as a result of compensable injuries.

        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.

                                                3
                                   Affirmed.

ISSUED: November 10, 2014

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




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