STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
DAVID ADKINS, July 11, 2013
RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 12-0523 (BOR Appeal No. 2046594)
(Claim No. 2010112647)
A. T. MASSEY COAL COMPANY, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner David Adkins, by Reginald D. Henry, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. A. T. Massey Coal Company, Inc., by
Bradley A. Crouser, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated March 26, 2012, in
which the Board affirmed a November 10, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s June 3, 2010,
decision granting Mr. Adkins a 2% 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
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Mr. Adkins suffered an injury when he was hit by coal and top rock and knocked down
while washing out a silo with water to unplug it. The claim was originally held compensable for
unspecified contusion of the eyeball and laceration of the eyelid. The Office of Judges reversed
the claims administrator’s decision and held that Mr. Adkins has been fully compensated for the
injury to his cervical spine and granted an award of 8% permanent partial disability, representing
6% for the lumbar spine in addition to the 2% permanent partial disability award which was
granted for scarring of the left eyelid. On appeal, Mr. Adkins disagrees and asserts that the Board
of Review erred in finding that he was not entitled to more than an 8% permanent partial
disability award, and in finding that Dr. Walker’s report was not reliable. A. T. Massey Coal
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Company maintains that Mr. Adkins failed to prove by a preponderance of the evidence that he
is entitled to more than an 8% permanent partial disability award for his compensable injuries.
The Office of Judges concluded that Mr. Adkins has been fully compensated for the
injury to his cervical spine. It determined that Dr. Walker’s finding of 6% for the cervical spine
cannot be considered reliable because he did not appear to know of or factor in Mr. Adkins’s
previous award for the cervical spine. The Office of Judges relied on Dr. Grady’s and Dr.
Condaras’s recommendations that Mr. Adkins has been fully compensated for this condition
through his previous 6% permanent partial disability award. The Office of Judges then concluded
that Mr. Adkins had a 0% whole person impairment for the knee sprain because the injury of
August 5, 2009, cannot be said to have meaningfully contributed to the impairment of the knee.
The Office of Judges concluded that Mr. Adkins had a 2% permanent partial disability
award for scaring of the left eyelid. It determined that Dr. Walker’s finding 11% impaired for
vision loss and 1% impaired for scaring of the eye cannot be considered credible because there
was no indication that Mr. Adkins had ever suffered any visual impairment to the eye and no
other physician found Mr. Adkins suffered vision loss other than shortly after the injury. The
Office of Judges relied on Dr. Grady’s and Dr. Condaras’s findings of 2% impairment for the left
eye and held that Mr. Adkins had 2% whole person impairment for the left eye. The Office of
Judges concluded that Mr. Adkins had a 6% whole person impairment for the lumbar spine as
recommended by Dr. Condaras. The Board of Review reached the same reasoned conclusions in
its decision of March 26, 2012. 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 11, 2013
CONCURRED IN BY:
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II
DISSENTING:
Justice Menis E. Ketchum
Chief Justice Brent D. Benjamin, Disqualified
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