                                  STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS                                       FILED
                                                                                          February 7, 2013

                                                                                       RORY L. PERRY II, CLERK

ROBERT L. REPASS,                                                                    SUPREME COURT OF APPEALS

                                                                                         OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)    No. 11-0686 (BOR Appeal No. 2045088)
                     (Claim No. 2005029435)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

EASTERN ASSOCIATED COAL, LLC,
Employer Below, Respondent


                                  MEMORANDUM DECISION
       Petitioner Robert L. Repass, by Cathy Greiner, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Eastern Associated Coal, LLC, by
Robert Busse1, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated March 28, 2011, in
which the Board affirmed a September 9, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 17,
2009, decision granting Mr. Repass a 0% permanent partial 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

1
  On April 16, 2012, Robert Busse withdrew from the representation of Eastern Associated Coal, LLC. Eastern
Associated Coal, LLC is currently represented by Henry Bowen.
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reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Mr. Repass was working as a coal miner for Eastern Associated Coal when he injured his
cervical spine. On February 2, 2005, the claim was held compensable for a neck sprain. Mr.
Repass received a 5% permanent partial disability award on April 2, 2007, based on the March 1,
2007, evaluation by Dr. Landis. On September 17, 2009, the claims administrator granted an
additional 0% permanent partial disability award. On April 9, 2009, Dr. Poletajev evaluated Mr.
Repass and recommended a 15% permanent partial disability award, noting significant signs of
radiculopathy. Dr. Landis, in August of 2009 re-evaluated Mr. Repass and found that he
continued to suffer from the 5% impairment originally found. On February 19, 2010, Dr.
Bachwitt evaluated Mr. Repass and agreed with Dr. Landis’s 5% impairment rating.

        In affirming the claims administrator’s Order, the Office of Judges found that the
preponderance of the evidence did not demonstrate that Mr. Repass was entitled to any
permanent partial disability above that previously granted. On appeal, Mr. Repass argues that the
Office of Judges did not find Dr. Poletajev’s report to be unreliable, therefore he is entitled to an
additional 10% permanent partial disability award. Eastern Associated Coal maintains that the
additional 0% permanent partial disability award was correct because Dr. Poletajev did not use
the correct method of evaluating Mr. Repass under West Virginia Code of State Rules § 85-20.

        The Office of Judges concluded that Dr. Poletajev’s report was not the best evidence of
record concerning Mr. Repass’s whole person impairment. It noted that Dr. Poletajev found
significant signs of radiculopathy, while both Drs. Landis and Bachwitt found no signs of
radiculopathy. Moreover, the Office of Judges found that while Dr. Poletajev conducted range of
motion studies, he did not use the range of motion model to determine the amount of impairment.
The Office of Judges found that Drs. Landis and Bachwitt used the correct method of calculating
whole person impairment and concluded that Mr. Repass was entitled to an additional 0%
permanent partial disability award based on those evaluations. The Board of Review reached the
same reasoned conclusion in its decision of March 28, 2011. 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.




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ISSUED:      February 7, 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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