Donald Adkins v. W. Va. Office of Insurance Commissioner/Cow Creek Coal ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
March 6, 2013
RORY L. PERRY II, CLERK
RONALD ADKINS, SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 11-0787 (BOR Appeal No. 2045333)
(Claim No. 960017089)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
COW CREEK COAL COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Ronald Adkins, by John Blair, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon Snyder, 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 a November 17, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 27, 2009,
decision denying further consideration of Mr. Adkins’s request for permanent total disability
benefits because he did not meet the necessary statutory threshold. 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. Adkins was most recently employed as a scoop operator with Cow Creek Coal
Company. He filed an application for permanent total disability benefits on June 11, 2003. Mr.
Adkins has undergone multiple independent medical evaluations in order to determine the
amount of permanent impairment attributable to his compensable injuries. On June 14, 2000, Dr.
Shah recommended a 12% psychiatric permanent partial disability award, and on October 7,
2002, Dr. Faheem recommended a 15% psychiatric permanent partial disability award. On May
13, 2003, Dr. Grady recommended a 16% permanent partial disability award for the cervical
spine, a 4% permanent partial disability award for the thoracic spine, and a 14% permanent
partial disability award for the lumbar spine. Dr. Weise recommended a 5% psychiatric
permanent partial disability award on July 10, 2007. On March 19, 2009, the Permanent Total
Disability Review Board stated in its final recommendations that Mr. Adkins failed to meet the
whole person impairment threshold required for further consideration of permanent total
disability benefits pursuant to West Virginia Code § 23-4-6(n)(1) (1999). The Permanent Total
Disability Review Board found that the evaluations by Drs. Grady and Weise presented the most
accurate assessment of the amount of Mr. Adkins’s whole person impairment. The Permanent
Total Disability Review Board then found that Mr. Adkins suffered a total whole person
impairment of 34%. On November 9, 2009, Dr. Poletajev examined Mr. Adkins and
recommended a permanent partial disability award of 49% for his back, shoulder, and psychiatric
problems. Dr. Poletajev also found Mr. Adkins to be permanently and totally disabled. On May
19, 2010, Dr. Bachwitt recommended a 31% permanent partial disability award for injuries to
Mr. Adkins’s back and shoulder.
In its Order affirming the claims administrator’s March 27, 2009, decision, the Office of
Judges held that Mr. Adkins failed to meet the statutory threshold necessary for further
consideration of permanent total disability benefits. Mr. Adkins disputes this finding and asserts
that the evidence of record demonstrates that he is permanently and totally disabled.
The Office of Judges noted that only Dr. Poletajev, a chiropractor, found that Mr. Adkins
met the statutory threshold. The Office of Judges then found that Dr. Poletajev’s opinion is
entitled to less weight than the opinions of Drs. Grady and Bachwitt. The Office of Judges
further found that Dr. Poletajev overestimated the amount of Mr. Adkins’s lumbar spine
impairment, and noted that Dr. Poletajev was the only physician of record to find significant
lumbar radiculopathy. Additionally, the Office of Judges found that Dr. Weise’s psychiatric
permanent impairment recommendation is the most recent and persuasive, and that Dr.
Poletajev’s opinion as a chiropractor is not reliable with regard to psychiatric issues. The Board
of Review reached the same reasoned conclusions in its decision of April 18, 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.
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Affirmed.
ISSUED: March 6, 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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