CHARLESTON — The West Virginia Supreme Court of Appeals found that a man failed to show that he had at least 50 percent whole person impairment and is not entitled to further consideration of a permanent total disability award.
Jerry Lesher was a coal miner for Patriot Coal Corporation and submitted an application for permanent total disability benefits on June 26, 2017, after he had received permanent partial disability awards of 17 percent for a left foot, left heel and left ankle injury; 16 percent for a cervical spine injury and bilateral carpal tunnel syndrome; 10 percent for occupational pneumoconiosis; 3 percent for a right knee injury; 4 percent for a left knee injury; and 14 percent for a lower back, left hip and left foot injury for a total of 64 percent permanent partial disability, according to a memorandum decision filed July 19 with the Supreme Court.
A claims administrator found that because Lesher was awarded 64 percent in prior permanent partial disability awards, he was eligible for further consideration of a permanent total disability award on Nov. 18, 2016, so Lesher had an independent medical evaluation on Jan. 10, 2017, but he was only given 39 percent who person impairment, meaning he fell short of the 50 percent needed for further consideration of a permanent total disability award. The rating was later adjusted to 41 percent, but he still did not meet the 50 percent threshold.
Lesher appealed, but the Office of Judges found his arguments to be unpersuasive and it determined that he failed to meet the 50 percent threshold and the Workers' Compensation Board of Review adopted the Office of Judges' findings in an order on April 14, 2020.
Lesher then appealed to the Supreme Court.
"After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review...in order to receive a permanent total disability award, a claimant must first show that he or she has received at least 50 percent in permanent partial disability awards," the decision states. "Next, the claimant must be evaluated by the reviewing Board and be found to have at least 50 percent whole body impairment. In this case, Mr. Lesher has at least 50 percent prior permanent partial disability awards."
The court wrote that the issue was whether he had 50 percent whole body impairment, but that he did not.
"Therefore, Mr. Lesher has failed to show that he has at least 50 percent whole person impairment and is not entitled to further consideration of a permanent total disability award," the decision states.
West Virginia Supreme Court of Appeals case number: 20-0287