Supreme Court says doctor correctly applied code in disability decision

By Kyla Asbury | Mar 24, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that the physician who performed an evaluation on a man seeking permanent total disability benefits correctly applied West Virginia code.

In its March 10 memorandum decision, the West Virginia Supreme Court of Appeals found no substantial question of law and no prejudicial error.

Thomas L. Cooper appealed a decision by the Worker’s Compensation Board of Review and Appalachian Power Company filed a timely response, according to the decision.

Cooper filed an application for permanent total disability benefits on March 20, 2012. Over the course of his 38 years of employment with Appalachian, he sustained multiple work-related injuries, including his last injury on June 20, 2008, when he suffered a traumatic amputation of multiple fingers from a piece of equipment ran over his right hand.

Cooper never returned to work and he was ultimately granted 43 percent permanent partial disability for the injury on Dec. 4, 2012. He was also granted 10 percent permanent partial disability award for psychiatric impairment arising from the injury.

Because of three previous permanent partial disability awards in 1976, 1985 and 2000, Cooper’s application for permanent total disability benefits indicated he had received permanent partial disability awards totaling 63 percent, which satisfied the first threshold for permanent total disability consideration.

After he was evaluated by a doctor, it was determined that his whole body medical impairment was only 46 percent, meaning he did not satisfy the 50 percent threshold, according to the May 21, 2014 order entered by the Permanent Total Disability Review Board. Cooper appealed the decision to the Office of Judges.

The OOJ reversed the claims administrator’s decision and remanded the claim for another whole body medical impairment evaluation to be followed by another determination by the PTDRB regarding his eligibility for further permanent total disability consideration. Appalachian appealed the decision to the Board of Review.

The Board of Review found that the OOJ made an error of law and reinstated the claims administrator’s May 21, 2014, order denying Cooper’s permanent total disability benefits. Cooper then appealed to the Supreme Court.

“Having carefully reviewed the record in this case, we find no violation of a statutory provision or erroneous conclusion of law in the Board of Review’s final order,” the decision states.

Because Cooper’s physician correctly applied West Virginia Code of State Rules to her assessment of Cooper’s lumbar and cervical impairment, the Board of Review was not clearly wrong in finding that Cooper could not satisfy the 50 percent whole body medical impairment threshold necessary for further consideration of his eligibility for permanent total disability benefits.

“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 an erroneous conclusion of law, nor is it based upon a material misstatement or mischaracterization of the evidentiary record,” the decision states. “Therefore, the decision of the Board of Review is affirmed.”

W.Va. Supreme Court of Appeals case number: 15-1095

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