DOUGLAS L. HUGHES, Claimant Below, Petitioner
ISLAND CREEK COAL COMPANY, Employer Below, Respondent
Appeal No. 2050981 (Claim No. 890061743)
Douglas L. Hughes, pro-se, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Island
Creek Coal Company, by Bradley A. Crouser, its attorney,
filed a timely response.
issue on appeal is whether Mr. Hughes's request for
consideration of a permanent total disability award was
properly denied. On March 24, 2014, the claims administrator
denied consideration of a permanent total disability award.
The Office of Judges affirmed the decision in its November 9,
2015, Order. The Board of Review affirmed the decision on May
3, 2016. The Court has carefully reviewed the records,
written arguments, and appendices contained in the briefs,
and the case is mature for consideration.
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
Hughes, a coal miner, submitted a letter to the claims
administrator on March 17, 2014, advising that he had been
totally disabled since January 2, 2004, and requesting the
monthly permanent total disability benefits due to him. The
claims administrator considered the letter to be Mr.
Hughes's application for permanent total disability
benefits. On March 24, 2014, the claims administrator denied
Mr. Hughes's application for consideration of a permanent
total disability award as he failed to meet the statutory
threshold required by the West Virginia Code. This appeal
Hughes was awarded 5% permanent partial disability on July
30, 1991, due to occupational pneumoconiosis without
impairment. On July 31, 1991, he injured his lumbar spine. He
was granted 9% permanent partial disability on June 9, 1992,
for the lumbar spine. He also had a 1989 injury for which he
was assessed 1% permanent partial disability for the lumbar
spine and 2% permanent partial disability for psychiatric
impairment. The total of the permanent partial disability
awards of 17% does not meet the statutory minimum needed to
be considered for a permanent total disability. Mr. Hughes
asserted that 17% permanent partial disability total did not
take into account the true scope of his injuries and
November 9, 2015, Order, the Office of Judges acknowledged
Mr. Hughes's concern that he could not have met the
statutory threshold because of improprieties in the diagnoses
listed in his claims and in the actual impairment evaluation
reports in this claim. The impairments assessed for his three
claims totaled 17%. The Office of Judges found that Mr.
Hughes's concerns and allegations that this claim had
been mishandled was addressed by this Court when we affirmed
the 9% permanent partial disability award for his lumbar
spine. As Mr. Hughes's concerns had
been fully addressed, the Office of Judges declined to review
them again due to res judicata. The Office of Judges also
found that Mr. Hughes would have had to be assessed with 36%
impairment due to his June 9, 1989, injury in order reach the
statutory threshold. However, he was only assessed 2%
impairment for psychological issues and 1% impairment for his
lumbar spine due to that injury. Mr. Hughes did not feel
wholly compensated for the extent of his injuries by this
impairment nor did he believe all of his lumbar conditions
had been considered. However, even if that were the case, it
would not have made a difference. The Office of Judges
determined that the maximum impairment for the lumbar spine
under Rule 20 is 28% impairment. Therefore, the Office of
Judges determined Mr. Hughes had not proven that he had or
should have had 50% permanent partial disability as the
result of his three injuries.
Board of Review adopted the findings of fact and conclusions
of law of the Office of Judges and affirmed its decision on
May 3, 2016. After review, we agree. Mr. Hughes submitted a
great deal of evidence in support of his position. However,
he failed to meet the threshold for consideration of a
permanent total disability award. He has only shown a total
of 17% impairment. As such, he is not entitled to
consideration for a permanent total disability award.
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
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis E.
Ketchum Justice Elizabeth D. Walker.
See Hughes v. Workers'
Compensation Division and Island Creek Mining Co., No.
23615 (March 31, ...