Jonah Oscar Elkins Jr. v. W. Va. Office of Insurance Commissioner/Paragon Construction & Reclamation

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS October 7, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
JONAH OSCAR ELKINS JR., OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 13-0659 (BOR Appeal No. 2047955)
(Claim No. 2004002833)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PARAGON CONSTRUCTION & RECLAMATION CO., INC.,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Jonah Oscar Elkins Jr., 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 Gregory W. Evers, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated May 28, 2013, in which
the Board reversed a November 16, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s June 14, 2011,
decision and concluded that Mr. Elkins had met the 50% whole person impairment threshold
entitling him to an evaluation 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. Elkins worked as a construction foreman for Paragon Construction & Reclamation
Company. Mr. Elkins received various injuries throughout the course of his employment
including injuries to his cervical spine, lumbar spine, and right knee. He also developed carpal
tunnel syndrome related to his employment. The claims administrator held these claims
compensable and granted Mr. Elkins permanent partial disability awards related to each injury.
Mr. Elkins was also granted a 15% permanent partial disability award related to occupational
pneumoconiosis and a 5% permanent partial disability award related to his psychiatric disability.
On December 23, 2008, Mr. Elkins filed an application for permanent total disability benefits
based on these injuries. His application was submitted to Ramanathan Padmanaban, M.D., who
found that Mr. Elkins did not have 50% whole person impairment. The Permanent Total
Disability Review Board then issued a report recommending that Mr. Elkins’s application for
permanent total disability benefits be denied. The Review Board found that Mr. Elkins had 13%
impairment for his cervical spine, 13% impairment for his lumbar spine, 5% impairment for his
knee, and 15% impairment for occupational pneumoconiosis. The Review Board determined that
these ratings amounted to a 39% whole person impairment rating under the Combined Values
Chart of the American Medical Association’s Guides to the Evaluation of Permanent Impairment
(4th ed. 1993). On June 14, 2011, the claims administrator denied Mr. Elkins’s application for
permanent total disability benefits based on the Review Board’s findings. Bruce A. Guberman,
M.D., then evaluated Mr. Elkins and found that he had suffered 58% whole person impairment
from his occupational injuries. Dr. Guberman calculated Mr. Elkins’s impairment under the
American Medical Association’s Guides, but he did not adjust his calculations of Mr. Elkins’s
lumbar or cervical impairment to fit within West Virginia Code of State Rules §§ 85-20-C and
85-20-E (2006). Prasadarao B. Mukkamala, M.D., then evaluated Mr. Elkins and determined that
he had 34% whole person impairment for his orthopedic injuries, his occupational
pneumoconiosis, and his psychiatric disability. Dr. Mukkamala based his calculation on the
American Medical Association’s Guides and West Virginia Code of State Rules §§ 85-20-C and
85-20-E. Dr. Padmanaban then evaluated Mr. Elkins a second time and found that he had 44%
whole person impairment for his orthopedic injuries and occupational pneumoconiosis. On
November 16, 2012, the Office of Judges reversed the claims administrator’s decision and found
that Mr. Elkins had met the 50% whole person impairment threshold for permanent total
disability benefits. The Board of Review reversed the Order of the Office of Judges on May 28,
2013, and reinstated the claims administrator’s decision rejecting Mr. Elkins’s application for
permanent total disability benefits.

The Office of Judges concluded that Mr. Elkins had met the 50% whole person
impairment threshold for permanent total disability benefits. The Office of Judges reached this
conclusion by combining the orthopedic impairment calculation from Dr. Padmanaban’s second
evaluation with a 12% impairment rating for carpal tunnel syndrome and a 5% impairment rating
for Mr. Elkins’s psychiatric disability. The Office of Judges determined under this calculation
that Mr. Elkins had 53% whole person impairment. The Office of Judges considered the
recommendation of the Permanent Total Disability Review Board and Dr. Mukkamala, but the
Office of Judges found that neither recommendation included a calculation of the disability
associated with Mr. Elkins’s carpal tunnel syndrome.

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 The Board of Review concluded that the Order of the Office of Judges was affected by an
error of law and was clearly wrong based on the evidence in the record. The Board of Review
determined that the Permanent Total Disability Review Board was correct in excluding an
impairment calculation for Mr. Elkins’s carpal tunnel syndrome based on West Virginia Code of
State Rules § 23-4-6(n)(4)(A) (2005). The Board of Review found that Mr. Elkins did not meet
the 50% whole person impairment threshold based on the Permanent Total Disability Review
Board’s recommendation.

On appeal, Mr. Elkins argues that the 58% impairment finding of Dr. Guberman shows
that he has met the whole person impairment threshold under West Virginia Code § 23-4-6(n)(1)
(2005). Mr. Elkins argues that the Board of Review improperly dismissed Dr. Guberman’s report
and that he is entitled to permanent total disability benefits.

We agree with the conclusions of the Board of Review. The Order of the Office of Judges
was not consistent with West Virginia Code § 23-4-6(n)(4)(A) and was properly reversed. Mr.
Elkins has not demonstrated that he has suffered from 50% whole person impairment relating to
his occupational injuries. The most reliable evidence of Mr. Elkins’s impairment is the
evaluation of Dr. Mukkamala, and he found that Mr. Elkins had only suffered 34% whole person
impairment related to his occupational injuries. Dr. Mukkamala considered all Mr. Elkins’s
occupational injuries. He properly evaluated Mr. Elkins’s various injuries under the American
Medical Associations’ Guides and the West Virginia Code of State Rules. He also properly
combined the impairment ratings from Mr. Elkins’s injuries under the American Medical
Association’s Guides. Dr. Guberman did not provide a reliable assessment of Mr. Elkins’s whole
person impairment, and his evaluation cannot be used to support a finding that Mr. Elkins has
met the 50% whole person impairment threshold. Dr. Guberman calculated Mr. Elkins’s lumbar
and cervical impairment without adjusting his findings to fit within West Virginia Code of State
Rules §§ 85-20-C and 85-20-E. Dr. Guberman’s improper calculation of Mr. Elkins’s cervical
and lumbar impairment significantly undermines the value of his findings.

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: October 7, 2014

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

DISSENTING:
Justice Margaret L. Workman
Justice Menis E. Ketchum
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