Thomas L. Cooper v. Appalachian Power Co.

Citation: Not availableDocket: 15-1095

Court: West Virginia Supreme Court; March 9, 2017; West Virginia; State Supreme Court

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Thomas L. Cooper appeals a decision from the West Virginia Worker’s Compensation Board of Review, which reversed a prior order from the Office of Judges that had remanded his claim for reevaluation of whole body medical impairment. The Board concluded that Cooper did not meet the statutory threshold of fifty percent whole body medical impairment required for permanent total disability consideration, thereby reinstating the claims administrator’s earlier denial of permanent total disability benefits.

Cooper, who filed for these benefits on March 20, 2012, had worked for Appalachian Power for thirty-eight years and sustained multiple work-related injuries, including a traumatic amputation of multiple fingers in 2008, for which he received a forty-three percent permanent partial disability award. He also received a ten percent award for psychiatric impairment, totaling sixty-three percent in prior awards, meeting the initial threshold for permanent total disability consideration under West Virginia law.

The Permanent Total Disability Review Board referred Cooper to Dr. Marsha Bailey for a reevaluation of his whole body medical impairment, where she assessed him with a forty-three percent impairment. However, her findings indicated that specific impairments related to his lumbar and cervical issues adjusted to zero percent when applying state rules, concluding that his ongoing complaints were unrelated to earlier injuries. Ultimately, the Court found no substantial legal questions or prejudicial errors in the Board's decision, affirming the Board of Review’s order.

Dr. Bailey opined that Mr. Cooper’s cervical issues stem solely from pre-existing conditions, including three cervical vertebrae fractures from 1972 and age-related changes, rather than from a sprain and strain incurred at work in 1985. X-rays taken on the day of Mr. Cooper’s injury indicated degenerative disc disease. The PTDRB determined that Mr. Cooper did not meet the fifty percent whole body medical impairment threshold necessary for permanent total disability benefits, assigning a five percent impairment for his lower back, resulting in a total impairment of forty-six percent. Consequently, the claims administrator denied his request for benefits on May 21, 2014.

Mr. Cooper appealed this decision to the Office of Judges, which reversed the claims administrator's ruling and ordered a new evaluation of his whole body medical impairment, finding Dr. Bailey's report flawed regarding her application of Rule 20 to the cervical and lumbar impairments. The Office of Judges deemed another assessment necessary.

Appalachian Power appealed the Office of Judges' decision to the Board of Review, which concluded that the Office of Judges had erred in law. The Board asserted that impairment ratings must align with specific regulatory tables and upheld Dr. Bailey's application of Rule 20, ultimately determining that Mr. Cooper failed to meet the fifty percent threshold. The Board reinstated the claims administrator’s denial of benefits. The Supreme Court of Appeals reviews the Board of Review’s decisions with deference, allowing reversal only if there are clear violations of law or insufficient evidence to support the Board's conclusions.

The court is prohibited from re-evaluating the evidentiary record de novo. If it reverses or modifies a board decision, it must specify the basis for such action, demonstrating how the board's decision violated constitutional or statutory provisions, stemmed from incorrect legal conclusions, or was so clearly erroneous that it lacked sufficient evidentiary support. Mr. Cooper contends that his whole body medical impairment should not have been reassessed since his prior permanent partial disability awards exceeded fifty percent. He argues that the "secondary" examination by Dr. Bailey should not have led to a reduction in his impairment rating. However, the court emphasizes that workmen’s compensation benefits are governed by statute, and where statutory language is clear, it must be applied as per legislative intent. The court finds Mr. Cooper's argument unpersuasive, as West Virginia Code § 23-4-6(n)(1) mandates a reevaluation of whole body medical impairment to assess eligibility for permanent total disability awards. The decision of the Board of Review is upheld, confirming that there was no statutory violation or erroneous legal conclusion. The court references a prior case, Bowles v. The New West Virginia Mining Company, where similar issues arose regarding impairment evaluations under the applicable state rules. In Mr. Cooper's case, Dr. Bailey correctly applied these rules, supporting the Board's conclusion that he did not meet the threshold for further consideration of permanent total disability benefits. Consequently, the Board's decision is affirmed, with no constitutional or statutory violations found.

Affirmation of the Guides Fourth indicates that once an impairment level is assessed through range of motion, it will be compared to specified ranges. Any permanent partial disability assessments exceeding these ranges, as determined by the rating physician, will be adjusted to fit within the defined limits. West Virginia Code of State Rules sections 85-20-64.2 to 85-20-64.4 and Tables 85-20-C through E outline these impairment ranges for spinal injuries. In the case of Simpson v. West Virginia Office of Insurance Commissioner, the court evaluated whether the legislative authorization for standardized impairment evaluation guidelines constituted a separation of powers violation. The court upheld the validity of W.Va. C.S.R. Table 85-20-C, affirming it as a legitimate exercise of rule-making authority granted to the Workers’ Compensation Board of Managers by the legislature. This ruling applies to all relevant tables within 85 C.S.R. 20. The decision was issued on March 10, 2017, and concurred by the Chief Justice and four other justices.