Daniel J. Lewis v. W. Va. Office of Insurance Commissioner/Island Fork Construction

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS July 2, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
DANIEL J. LEWIS, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-0168 (BOR Appeal No. 2047436)
(Claim No. 2002054783)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
ISLAND FORK CONSTRUCTION, LTD.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Daniel J. Lewis, by Robert Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Gregory Evers, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated January 25, 2013, in
which the Board affirmed a July 6, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s February 1, 2011, decision
denying Mr. Lewis’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. Lewis filed an application for permanent total disability benefits on November 28,
2006, after sustaining multiple work-related injuries over the course of several years. He has
undergone multiple independent medical evaluations in order to determine the amount of
permanent impairment attributable to his compensable injuries.
On May 5, 2004, Alex Ambroz, M.D., performed an independent medical evaluation. He
opined that Mr. Lewis sustained 12% whole person impairment for injuries to his lower back. Dr.
Ambroz factored in a prior 25% permanent partial disability award for the right foot and an 8%
permanent partial disability award for post-traumatic stress disorder, and concluded that Mr.
Lewis sustained a total of 39% whole person impairment as a result of his compensable injuries.
On June 2, 2004, Ryan Finkenbine, M.D., performed a psychiatric independent medical
evaluation and opined that Mr. Lewis sustained 10% whole person impairment as a result of
psychiatric disorders arising from his compensable injuries. On January 16, 2004, James Wiley,
M.D., performed an independent medical evaluation and found that Mr. Lewis sustained 25%
whole person impairment for reflex sympathetic dystrophy in the right lower extremity, 20%
whole person impairment for injuries to his lumbar spine, and 8% whole person impairment for
post-traumatic stress disorder. He then determined that Mr. Lewis sustained a total of 45% whole
person impairment as a result of his compensable injuries.
On November 7, 2008, Charles Werntz III, D.O., performed an independent medical
evaluation and found that Mr. Lewis sustained 8% whole person impairment for injuries to his
lumbar spine, 0% whole person impairment for injuries to his thoracic spine, 8% whole person
impairment for injuries to his cervical spine, and 6% whole person impairment for injuries to his
right foot. He further found that there is no evidence of reflex sympathetic dystrophy in the right
foot. He then concluded that Mr. Lewis sustained 20% whole person impairment as a result of
his compensable injuries, exclusive of impairment attributable to psychiatric conditions.
On January 13, 2011, the Permanent Total Disability Review Board issued its final
recommendations and determined that Mr. Lewis 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. Werntz’s independent medical evaluation is reliable and credible, and
further found that it is the most current and accurate assessment of Mr. Lewis’s amount of whole
person impairment. However, it found that Dr. Werntz erroneously concluded that Mr. Lewis has
0% whole person impairment for injuries to his thoracic spine, because the documented range of
motion deficits in the thoracic spine exhibited during Dr. Werntz’s independent medical
evaluation are indicative of 5% whole person impairment for the thoracic spine. The Permanent
Total Disability Review Board further found that Mr. Lewis sustained 10% whole person
impairment as a result of psychiatric disorders arising from his compensable injuries. The
Permanent Total Disability Review Board then determined that according to the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Mr.
Lewis sustained 32% whole person impairment as a result of his compensable injuries.
The claims administrator denied Mr. Lewis’s request for a permanent total disability
award on February 1, 2011. On February 28, 2012, ChuanFang Jin, M.D., performed an
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independent medical evaluation for the purpose of determining the amount of permanent
impairment attributable to Mr. Lewis’s right foot injuries. Dr. Jin found no sign of reflex
sympathetic dystrophy in the right foot, and determined that Mr. Lewis sustained 6% whole
person impairment as a result of his right foot injuries.
In its Order affirming the claims administrator’s February 1, 2011, decision, the Office of
Judges held that Mr. Lewis 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). Mr. Lewis disputes this finding and asserts that the evidence of record
demonstrates that he has met the necessary statutory whole person impairment threshold and is
therefore entitled to further consideration of permanent total disability benefits.
The Office of Judges noted that Mr. Lewis has amassed 65% in prior permanent partial
disability awards, which made 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).
The Office of Judges further noted that upon review of Mr. Lewis’s request for permanent total
disability benefits, the Permanent Total Disability Review Board concluded that Mr. Lewis 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). The Office of Judges then
concluded that based on the preponderance of the evidence, the Permanent Total Disability
Review Board’s finding that Mr. Lewis failed to meet the statutory whole person impairment
threshold necessary for further consideration of permanent total disability benefits is reliable.
The Board of Review reached the same reasoned conclusions in its decision of January 25, 2013.
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: July 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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