WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has affirmed the order of the state’s Workers’ Compensation Board of Review denying permanent total disability benefits to a man who had suffered numerous separate on-the-job injuries.

The 3-2 majority of Chief Justice Brent D. Benjamin and justices Robin Jean Davis and Allen H. Loughry voted as a block in two other Workers’ Compensation cases issued on Feb. 14 as well. All three decisions affirmed the Board of Review.

The minority voters in all three cases were justices Margaret L. Workman and Menis E. Ketchum.

This case concerned the potential disability of construction worker Jerry Lee Easter. Easter has a history of work-related injuries, according to the opinion.

In June 1991, Easter stepped into a hole at work, which caused him a compensable injury. In April 1994, a physician reported that he had reached maximum medical improvement from his injury and that Easter had a “whole-body impairment of 17% for his cervical spine, thoracic disc, and left lateral thigh.”

The claims administrator, based on the physician’s findings, found Easter 17 percent disabled but the Office of Judges found him 36% disabled.

Easter was at work driving a dump truck on a railroad in September 1996 when the truck derailed, injuring his neck. In November 2000, after another physician found he had reached maximum medical improvement for the neck injury, the physician found that he had been fully compensated by his previous 36 percent permanent partial disability impairment award.

Again, the Office of Judges disagreed with the physician’s percentage assessment and awarded him an additional two percent for a total of 38 percent permanent partial disability.

In May 2002, Easter was granted an additional 5.5 percent award after a physician reported a 5.5 percent whole person impairment for hearing loss that was attributable to a job-related injury.

A month later, in June 2002, Dr. Bruce A. Guberman reported that Easter could not return to his prior types of employment due to his injuries and was he was permanently and totally disabled for all types of employment. Guberman found a total of 38 percent permanent partial disability impairment for cervical and lumbar injuries.

However, in January 2004, Dr. Paul K. Forberg found that Easter had 20 percent impairment for his cervical injuries rather than the 23 percent impairment that Dr. Guberman had found. Vocational consultants opined that there was potential employment for Easter in several occupations, although he might need some training.

In February 2010, Deborah I. Linville-Landers, from vocational rehabilitation firm Associates ARNC, stated that Easter could perform medium duty work and she located light duty positions within his market. Linville-Landers also reported that Easter had stated that he would not train to work on a low-paying job.

The Office of Judges considered all the evidence and on Sept. 30, 2010, it found that Easter was not permanently and totally disabled. The Board of Review agreed in its February 2011 Order.

“(W)e 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,” the court ruled.