Mike B. Newhouse v. W. Va. Office of Insurance Commissioner/BJM Coal Co.

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS June 27, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
MIKE B. NEWHOUSE, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 13-0307 (BOR Appeal No. 2047548)
(Claim No. 990019175)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

BJM COAL COMPANY,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Mike B. Newhouse, by Otis Mann Jr., his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Mark Bramble, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated February 25, 2013, in
which the Board affirmed a July 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 17, 2010,
decision denying Mr. Newhouse’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. Newhouse filed an application for permanent total disability benefits following the
receipt of multiple injuries in the course of his employment as an underground coal miner. Mr.
Newhouse has undergone numerous vocational evaluations and a psychiatric evaluation to
determine the extent of his disability.

On December 3, 2003, Ramesh Shah, M.D., performed a psychiatric independent medical
evaluation and concluded that Mr. Newhouse is not permanently and totally disabled from a
psychiatric perspective. He further stated that Mr. Newhouse suffers from only a mild psychiatric
impairment as a result of his occupational injuries. On June 27, 2005, Donald Pinckney, O.T./L,
performed a functional capacity evaluation and determined that Mr. Newhouse is functioning at
the sedentary physical demand level. On March 10, 2006, Gloria Alderson, R.N., C.D.M.S.,
A.B.D.A., performed a rehabilitation evaluation, and despite noting that Mr. Newhouse is
functioning at the sedentary physical demand level, concluded that he is unemployable and
therefore permanently and totally disabled because he has no potential for vocational
rehabilitation as a result of his current physical and mental condition. On June 9, 2009, Elizabeth
Davis, R.N., M.S., C.R.R.N., C.L.C.T., C.R.C., performed a vocational assessment. She noted
that Mr. Newhouse is capable of performing sedentary employment, but determined that he is
unable to engage in the vocational rehabilitation necessary for employment at the sedentary
physical demand level due to spelling and arithmetic deficiencies.

The Permanent Total Disability Review Board issued its final recommendations on
August 5, 2010, and concluded that Mr. Newhouse has vocational rehabilitation potential and is
capable of engaging in gainful employment at the sedentary to light physical demand level. The
Board determined that Mr. Newhouse is capable of engaging in employment at the light physical
demand level based upon normal MRI results and Mr. Newhouse’s demonstrated functional
capacity to consistently reach and handle materials. The claims administrator denied Mr.
Newhouse’s request for permanent total disability benefits on August 17, 2010.

On September 20, 2011, physical therapist Marj Weigel performed an additional
functional capacity evaluation and determined that Mr. Newhouse is employable at the sedentary
to light physical demand level. On December 8, 2011, Michael Price, M.A., Q.R.P., performed a
vocational rehabilitation evaluation and concluded that Mr. Newhouse is employable at the
sedentary to light physical demand level, and is not permanently and totally disabled. He further
stated that there are jobs currently available in the labor market at the sedentary to light physical
demand level for which Mr. Newhouse is currently qualified or could become qualified for with
minimal retraining.

In its Order affirming the August 17, 2010, claims administrator’s decision, the Office of
Judges held that Mr. Newhouse is capable of returning to substantial gainful employment. Mr.
Newhouse disputes this finding and asserts that the evidence of record demonstrates that he is
entitled to a permanent total disability award because he is unable to engage in substantial
gainful employment.

Both the Permanent Total Disability Review Board and the Office of Judges determined
that Mr. Newhouse met the requisite whole person impairment threshold necessary for further
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consideration of a permanent total disability award. Therefore, the issue on appeal is whether Mr.
Newhouse is capable of engaging in substantial gainful employment. Pursuant to West Virginia
Code § 23-4-6(n)(2) (2005), in order to receive a permanent total disability award, a claimant
must be unable to engage in substantial gainful employment.

The Office of Judges gave significant consideration to Ms. Weigel’s finding that Mr.
Newhouse can return to gainful employment at the sedentary to light physical demand level. The
Office of Judges specifically noted that Ms. Weigel’s functional capacity evaluation occurred six
years after the functional capacity evaluation in which Mr. Pinckney determined that Mr.
Newhouse was functioning at only the sedentary physical demand level. The Office of Judges
then found that the report of Mr. Price, which relied in part on Ms. Weigel’s findings, is
persuasive and further found that Mr. Price identified multiple available positions in Mr.
Newhouse’s geographical area that he is physically capable of performing. Based on the reports
of Ms. Weigel and Mr. Price, the Office of Judges concluded that Mr. Newhouse is not entitled
to a permanent total disability award because the evidence of record demonstrates that he can
engage in gainful employment at the sedentary to light physical demand level. The Board of
Review reached the same reasoned conclusions in its decision of February 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: June 27, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman

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