Tony Simpkins v. Rockhouse Creek Development

STATE OF WEST VIRGINIA

FILED
SUPREME COURT OF APPEALS March 27, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
TONY SIMPKINS, OF WEST VIRGINIA

Claimant Below, Petitioner

vs.) No. 14-0586 (BOR Appeal No. 2048969)
(Claim No. 2006004674)

ROCKHOUSE CREEK DEVELOPMENT, LLC,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Tony Simpkins, by Otis R. Mann Jr., his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Rockhouse Creek Development, LLC,
by Matthew Williams, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated May 27, 2014, in which
the Board affirmed an October 25, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s June 1, 2011, decision
denying Mr. Simpkins’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.

Mr. Simpkins filed an application for a permanent total disability award after sustaining
multiple work-related accidents over the course of several years. On January 12, 2011, the
Permanent Total Disability Review Board issued its initial recommendations and determined that
a permanent total disability evaluation performed by Bruce Guberman, M.D., on November 17,

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2010, lacks a credible foundation.1 The Permanent Total Disability Review Board was
particularly concerned with Dr. Guberman’s findings regarding the amount of lumbar spine
impairment. Therefore, the Permanent Total Disability Review Board determined that Mr.
Simpkins should undergo an additional permanent total disability evaluation. Jerry Scott, M.D.,
performed the requested permanent total disability evaluation on February 16, 2011. Using the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993), he opined that Mr. Simpkins sustained 5% whole person impairment as a result of range
of motion abnormalities in the cervical spine; 21% whole person impairment as a result of
injuries to the lumbosacral region, including 13% whole person impairment arising from a
surgical fusion of a lumbar vertebra and 9% whole person impairment arising from range of
motion abnormalities; and 2% whole person impairment arising from atrophy of the left calf. Dr.
Scott then opined that Mr. Simpkins sustained a total of 27% whole person impairment as a
result of his orthopedic injuries.

On May 19, 2011, the Permanent Total Disability Review Board issued its final
recommendations. The Permanent Total Disability Review Board agreed with Dr. Scott’s finding
that Mr. Simpkins sustained 27% whole person impairment as a result of compensable
orthopedic injuries. Additionally, the Permanent Total Disability Review Board gave deference
to a prior finding by the Occupational Pneumoconiosis Board that Mr. Simpkins sustained 20%
whole person impairment as a result of impaired pulmonary function. Utilizing the Combined
Values Chart contained in the American Medical Association’s Guides to the Evaluation of
Permanent Impairment, the Permanent Total Disability Review Board concluded that Mr.
Simpkins sustained 42% whole person impairment and therefore failed to meet the 50% whole
person impairment threshold required for further consideration of a permanent total disability
award pursuant to West Virginia Code § 23-4-6(n)(1) (2005). On June 1, 2011, the claims
administrator denied Mr. Simpkins’s request for a permanent total disability award.

On March 9, 2012, Dr. Guberman was deposed. He testified that he utilized the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.) to calculate
the amount of Mr. Simpkins’s whole person impairment as 54% on November 17, 2010, and
testified that Mr. Simpkins experienced a loss of range of motion in the neck, back, and knee,
and was also experiencing radiculopathy in the lumbar spine. On June 24, 2013, Christopher
Martin, M.D., performed an independent medical examination. He stated in his report that he
used the American Medical Association’s Guides to the Evaluation of Permanent Impairment
(4th ed.) to determine that Mr. Simpkins sustained 0% whole person impairment as a result of
injuries to the cervical spine, 20% whole person impairment as a result of injuries to the lumbar
spine, and 0% whole person impairment as a result of injuries to the left knee. He opined that he
defers to the Occupational Pneumoconiosis Board’s finding of 20% whole person impairment
arising from impaired pulmonary function, as well as an apparent prior 10% psychiatric
permanent partial disability award, and opined that Mr. Simpkins sustained a total of 42% whole
person impairment.

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The November 17, 2010, report of Dr. Guberman was not submitted into the record before the
Office of Judges.
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 In its Order affirming the June 1, 2011, claims administrator’s decision, the Office of
Judges held that Mr. Simpkins failed to meet the 50% whole person impairment threshold
necessary for further consideration of a permanent total disability award. The Board of Review
affirmed the Office of Judges’ decision on May 27, 2014. On appeal, Mr. Simpkins asserts that
he is entitled to further consideration of a permanent total disability award.2

Although the record contains no evidence regarding Mr. Simpkins’s prior permanent
partial disability awards, it is assumed that he has amassed at least 50% in prior permanent
partial disability awards, which makes his application for a permanent total disability award
reviewable by the Permanent Total Disability Review Board pursuant to West Virginia Code §
23-4-6(n)(1). Upon review, the Permanent Total Disability Review Board determined that Mr.
Simpkins failed to meet the requisite 50% whole person impairment threshold. The Office of
Judges found that Dr. Scott’s report, as adopted by the Permanent Total Disability Review
Board, is the most persuasive report of record. The Office of Judges determined that the
Permanent Total Disability Review Board properly gave deference to the Occupational
Pneumoconiosis Board’s conclusion that Mr. Simpkins has 20% whole person impairment
attributable to pulmonary function impairment. However, the Office of Judges determined that
the Permanent Total Disability Review Board failed to consider Mr. Simpkins’s psychiatric
impairment rating of 10%. The Office of Judges then utilized the Combined Values Chart
contained in the American Medical Association’s Guides to the Evaluation of Permanent
Impairment and determined that Mr. Simpkins’s whole person impairment rating is 48%, and
concluded that he therefore falls short of the requisite 50% whole person impairment threshold.
We agree with the reasoning and conclusions of the Office of Judges as adopted and affirmed by
the Board of Review. The evidence of record fails to demonstrate that Mr. Simpkins is entitled to
further consideration of a permanent total disability award.

2
On appeal to this Court, Mr. Simpkins relies on Dr. Guberman’s November 17, 2010,
permanent total disability evaluation as the basis for his assertion that he is entitled to further
consideration of a permanent total disability award. However, Dr. Guberman’s November 17,
2010, evaluation was not submitted into evidence before the Office of Judges. Therefore,
pursuant to W. Va. R.A.P. 12(f), this Court may not consider the substantive issues presented in
Dr. Guberman’s November 17, 2010, report.
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 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: March 27, 2015

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

DISSENTING:
Chief Justice Margaret L. Workman

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