David D. Keener v. W. Va. Ofc. of Insurance Commissioner/Island Fork Construction ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS December 2, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
DAVID D. KEENER, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 14-0165 (BOR Appeal No. 2048621)
(Claim No. 2001028544)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
ISLAND FORK CONSTRUCTION, LTD,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner David D. Keener, by Edwin Pancake, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Jon Snyder, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated January 24, 2014, in
which the Board affirmed a July 12, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 26, 2011,
decision denying Mr. Keener’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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Mr. Keener filed an application for permanent total disability benefits on May 27, 2005,
after sustaining multiple work-related injuries over the course of several years and amassing 54%
in prior permanent partial disability awards. On August 14, 2007, Paul Bachwitt, M.D.,
performed an independent medical evaluation and found that Mr. Keener sustained 8% whole
person impairment for injuries to his right wrist, 2% whole person impairment for fractures of his
seventh and eighth ribs, 5% whole person impairment for range of motion abnormalities in the
lumbar spine, and 20% whole person impairment as a result of gait derangement arising from a
crush injury to Mr. Keener’s left leg. He then applied the Combined Values Chart contained in
the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993) and concluded that Mr. Keener sustained 32% whole person impairment as a result of his
compensable injuries.
On March 18, 2011, the Permanent Total Disability Review Board issued its final
recommendation and determined that Mr. Keener failed to meet the 50% whole person
impairment threshold required for further consideration of permanent total disability benefits
pursuant to West Virginia Code § 23-4-6(n)(1) (2005). The Permanent Total Disability Review
Board found that Dr. Bachwitt’s independent medical evaluation is reliable and credible, and
further found that it is the most current and accurate assessment of Mr. Keener’s amount of
whole person impairment. However, it determined that Dr. Bachwitt’s finding that Mr. Keener
sustained 5% whole person impairment as a result of range of motion abnormalities in the
lumbar spine should be modified to reflect 8% whole person impairment arising from range of
motion abnormalities in the lumbar spine. It further found that Mr. Keener sustained 10% whole
person impairment as a result of occupational pneumoconiosis. The Permanent Total Disability
Review Board then determined that according to the American Medical Association’s Guides to
the Evaluation of Permanent Impairment, Mr. Keener sustained 40% whole person impairment
as a result of his compensable injuries.
On July 26, 2011, the claims administrator denied Mr. Keener’s request for a permanent
total disability award. On September 5, 2012, Bruce Guberman, M.D., performed an independent
medical evaluation for the purpose of determining the amount of permanent impairment arising
from the crush injury to Mr. Keener’s left leg. Dr. Guberman determined that Mr. Keener
sustained 28% whole person impairment as a result of range of motion impairment, sensory loss,
peripheral vascular disease, edema and superficial ulceration, and multiple surgical scars. In its
Order affirming the July 26, 2011, claims administrator’s decision, the Office of Judges held that
Mr. Keener failed to meet the 50% whole person impairment threshold necessary for further
consideration of a permanent total disability award pursuant to West Virginia Code § 23-4­
6(n)(1). The Board of Review affirmed the conclusions of the Office of Judges in its decision
dated January 24, 2014.
Mr. Keener amassed 54% in prior permanent partial disability awards, which makes his
application for permanent total disability benefits reviewable by the Permanent Total Disability
Review Board pursuant to West Virginia Code § 23-4-6(n)(1). Upon review, the Permanent
Total Disability Review Board concluded that Mr. Keener has not met the 50% whole person
threshold necessary for further consideration of permanent total disability benefits pursuant to
West Virginia Code § 23-4-6(n)(1). On appeal, Mr. Keener asserts that when assessing his
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amount of whole person impairment, the Combined Values Chart contained in the American
Medical Association’s Guides to the Evaluation of Permanent Impairment should not be utilized.
Mr. Keener further asserts that the Permanent Total Disability Review Board erred in utilizing
the Combined Values Chart, and the Office of Judges and Board of Review erred in relying on
the Permanent Total Disability Review Board’s conclusions.
West Virginia Code § 23-4-6(n)(1) provides that a claimant will be reevaluated “pursuant
to subdivision (i) of this section” for the purpose of determining whether the claimant sustained
50% or more whole person impairment, as is required for further consideration of permanent
total disability benefits. West Virginia Code § 23-4-6(i) (2005) mandates the adoption of
standards for the evaluation and determination of a claimant’s whole person impairment, which
are codified in West Virginia Code of State Rules § 85-20-65.1 (2006). In turn, West Virginia
Code of State Rules § 85-20-65.1 states that the amount of whole person impairment should be
determined in accordance with the American Medical Association’s Guides to the Evaluation of
Permanent Impairment, which instruct that the Combined Values Chart be used when
determining the amount of whole person impairment. Therefore, the Permanent Total Disability
Review Board’s use of the Combined Values Chart was not only proper, but necessary.
Further, Mr. Keener argues that the Office of Judges and Board of Review erred in not
applying the findings regarding the left leg contained in Dr. Guberman’s report. Although the
Office of Judges accepted the analysis of the Permanent Total Disability Review Board, the
Office of Judges performed an analysis using Dr. Guberman’s conclusions and determined that
Mr. Keener would still fall short of the 50% whole person impairment threshold necessary for
further consideration of a permanent total disability award. In performing its analysis, the Office
of Judges utilized the Combined Values Chart which, as described above, is required. It is
therefore clear that with or without the inclusion of Dr. Guberman’s report, Mr. Keener has
failed to meet the 50% whole person impairment threshold necessary for further consideration of
permanent total disability benefits pursuant to West Virginia Code § 23-4-6(n)(1).
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: December 2, 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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