                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 8, 2013

                                                                            RORY L. PERRY II, CLERK

EDDIE W. CLINE,                                                           SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0809 (BOR Appeal No. 2045167)
                    (Claim No. 2004036274)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

GLADY FORK MINING,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Eddie W. Cline, by Reginald Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Gary Mazezka, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 18, 2011, in
which the Board affirmed an October 8, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 28,
2009, decision denying 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.

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       Mr. Cline worked as a mine electrician and mechanic for over thirty years. During that
time he suffered various injuries, including injuries to his lumbar spine, cervical spine, right
shoulder, right wrist, and occupational pneumoconiosis. On August 8, 2007, Mr. Cline filed an
application for permanent total disability benefits. On December 10, 2009, the Permanent Total
Disability Review Board issued its final recommendations finding that Mr. Cline suffered from
40% whole person impairment resulting from his compensable injuries. The claims administrator
on December 28, 2009, denied the application for permanent total disability benefits because Mr.
Cline had not met the 50% whole person impairment threshold.

       The Office of Judges held that the preponderance of the evidence did not establish that
Mr. Cline suffers from 50% whole person impairment due to compensable injuries. On appeal,
Mr. Cline argues that Dr. Guberman’s findings were the most reliable, and that he is entitled to
an additional 10% impairment for occupational pneumoconiosis based on a settlement
agreement. The West Virginia Office of Insurance Commissioner maintains that the Permanent
Total Disability Review Board’s findings were correct, and that Mr. Cline is not entitled to an
additional 10% impairment because the settlement award does not relate to actual impairment.

        In affirming the claims administrator’s denial of permanent total disability benefits, the
Office of Judges noted that Dr. Guberman consistently found Mr. Cline suffered from a
significantly higher impairment than any other evaluators. It also noted that Dr. Guberman was
the only evaluator to find sensory loss. The Office of Judges found that the Permanent Total
Disability Review Board was correct to grant impairment based on its evaluation of the claimant,
rather than a settlement agreement. The Board of Review reached the same reasoned conclusions
in its Order of April 18, 2011. The Board of Review also noted that even if the Permanent Total
Disability Review Board had used a 10% impairment for occupational pneumoconiosis, Mr.
Cline still would not have met the 50% threshold. 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: February 8, 2013

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


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