Thomas J. Walker v. W. Va. Office of Insurance Commissioner/Chip & Dust Transport, etc.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS December 19, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
THOMAS J. WALKER, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 12-0690 (BOR Appeal No. 2046710)
(Claim No. 2002049523)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CHIP & DUST TRANSPORT, INC.
and JB HUNT TRANSPORT, INC.,
Employers Below, Respondent

MEMORANDUM DECISION
Petitioner Thomas J. Walker, by John C. Blair, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon H. Snyder, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated May 25, 2012, in which
the Board affirmed a December 19, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 28, 2011, decision
denying a request for permanent total disability benefits. 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. Walker was injured when he was attempting to pull the tailgate ramp into a locking
position on his delivery truck. His injury was held compensable for lumbar and cervical spine
strains. Mr. Walker also contracted occupational pneumoconiosis in the course of his
employment. He was granted a permanent partial disability award for his occupational
pneumoconiosis in the amount of 15%. He was also granted an award of 22% impairment for his
lumbar spine and 15% impairment for his cervical spine for a cumulative total of 35%
impairment for his back injuries. Mr. Walker applied for permanent total disability benefits.

The Permanent Total Disability Review Board determined that Mr. Walker had not met
the 50% threshold for permanent total disability. It found that he had 13% impairment for his
lumbar spine, 16% impairment for his cervical spine, and 15% impairment for occupational
pneumoconiosis. Using the combined values chart found in the American Medical Association’s
Guides to the Evaluation of Permanent Impairment, (4th Edition, 1993), the Permanent Total
Disability Review Board assessed Mr. Walker at 38% whole person impairment. Based upon
these findings, the claims administrator denied the request for permanent total disability benefits
on March 28, 2011.

The Office of Judges found, in its December 19, 2011, Order that the claims
administrator properly denied the request. The Office of Judges held that even though the
previous permanent partial disability awards add up to 50% that does not mean that when the
totals are combined, he has met the 50% whole person impairment required per West Virginia
Code § 23-4-6(n)(1) (2005). The Office of Judges determined that using the highest percentages
Mr. Walker had ever been granted, he still failed to meet the 50% threshold required for
impairment for pursing permanent total disability benefits.

The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its decision on May 25, 2012. This Court agrees with the reasoning and
conclusions of the Board of Review. Pursuant to West Virginia Code § 23-4-6(n)(1), Mr. Walker
has failed to meet the 50% whole person impairment required to obtain permanent total disability
benefits. Accordingly, the decision of the Board of Review is affirmed.

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 19, 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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