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Spartan Mining Co. v. Lusk

Supreme Court of West Virginia

July 6, 2017

SPARTAN MINING COMPANY, Employer Below, Petitioner
v.
DAVID WAYNE LUSK, Claimant Below, Respondent

         BOR Appeal No. 2051042, Claim No. 2007213119

          MEMORANDUM DECISION

         Petitioner Spartan Mining Company, by Sean Harter, its attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. David Wayne Lusk, by Reginald D. Henry, his attorney, filed a timely response.

         The issue on appeal is whether Mr. Lusk is eligible to receive a permanent total disability award. This appeal originated from the March 3, 2013, claims administrator's decision denying the application for a permanent total disability award. In its January 6, 2016, Order, the Workers' Compensation Office of Judges reversed the decision and granted a permanent total disability award with an onset date of February 11, 2008. The Board of Review's Final Order dated June 24, 2016, affirmed the Order of the Office of Judges. The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, and the case is mature for consideration.

         This 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 Procedure.

         Mr. Lusk, a former coal miner, has suffered several injuries over the course of his thirty-two years of employment. His most recent injury resulted in a total bilateral knee replacement surgery performed on January 2, 2007. Mr. Lusk subsequently filed this claim for a permanent total disability award. Mr. Lusk underwent several independent medical evaluations and functional capacity evaluations to determine whether he was permanently and totally disabled.

         On June 6, 2007, physical therapist Paula Gallimore performed a functional capacity evaluation of Mr. Lusk. Ms. Gallimore found that Mr. Lusk was functioning at or around the light physical demand level with both material and non-material handling tolerances. For non-material tolerances, Mr. Lusk demonstrated the ability to sit on an occasional basis and perform standing, walking, bending, stooping, and squatting on a rare basis. According to the key on the report, an "occasional" basis is defined as ranging from fifty-three minutes to two hours and forty-two minutes per eight hour work day while "rare" is defined as ranging from five minutes to fifty-two minutes per eight hour work day.

         On June 18, 2007, Caroline Williams, M.D., performed a functional capacity evaluation of Mr. Lusk. Dr. Williams found that Mr. Lusk retained the capacity to work at the medium exertional level. She noted that Mr. Lusk demonstrated the ability to stand, walk, and sit with normal breaks for a total of six hours in an eight hour day. Dr. Williams also determined that Mr. Lusk demonstrated the frequent ability to stoop and kneel and occasionally climb, balance, stoop, crouch, and crawl. Dr. Williams did not believe Mr. Lusk's allegations were credible as his alleged symptoms and subsequent disability were disproportionate to the medical evidence.

         On March 17, 2008, Mr. Lusk underwent a permanent total disability independent medical evaluation performed by Prasadarao Mukkamala, M.D. Dr. Mukkamala determined that Mr. Lusk had reached maximum medical improvement in regard to his compensable injuries and assigned a combined rating of 49.7% whole person impairment. It was Dr. Mukkamala's determination that Mr. Lusk was limited to a sedentary type of occupation at a minimum. However, after the claims administrator provided additional information, Dr. Mukkamala amended his impairment assessment and found Mr. Lusk to have a combined total of 51.7% whole person impairment. Dr. Mukkamala continued to opine that Mr. Lusk could perform work at the sedentary level.

         Mr. Lusk underwent a permanent total disability independent medical evaluation performed by Bruce Guberman, M.D., on October 8, 2009. Dr. Guberman found that Mr. Lusk had reached maximum medical improvement in regard to his compensable injuries and assigned an impairment rating of 63%. Dr. Guberman did not believe Mr. Lusk could return to his prior employment. Additionally, based on age, education, and work history, it was Dr. Guberman's opinion that Mr. Lusk was permanently and totally disabled as a direct result of the combined effects of his compensable injuries and any vocational rehabilitation would be futile.

         On May 16, 2011, the Office of Judges found that Mr. Lusk met the requisite whole person impairment threshold necessary for further consideration of a permanent total disability award. On February 7, 2012, Erin Saniga, a qualified rehabilitation provider, performed a vocational evaluation. Ms. Saniga concluded that Mr. Lusk was capable of performing sedentary level work. She pointed to the functional capacity evaluation performed by Ms. Gallimore and Dr. Mukkamala's independent medical evaluations as proof, as they had also made that determination. Ms. Saniga performed a labor market survey, which revealed approximately thirteen jobs she believed were compatible with Mr. Lusk's functional and vocational abilities.

         As a result, Ms. Saniga opined that Mr. Lusk was not permanently and totally disabled, although a brief training program focusing on computer basics and typing skills was recommended.

         Wells Fargo, the responsible carrier in this claim, issued findings on December 17, 2012, through its Permanent Total Disability Reviewing Board. In its initial findings, the Board concluded that based on the evidence, Mr. Lusk was able to engage in substantial gainful employment and recommended that his application for a permanent total disability award be denied. The Board reaffirmed this recommendation in its Final Recommendation issued on March 13, 2013. The claims administrator subsequently denied Mr. Lusk's application for a permanent total disability award.

         On April 30, 2013, Arthur Smith, P.T., performed a functional capacity evaluation. The results indicated Mr. Lusk was capable of performing work at the sedentary physical demand level on a part-time basis. Mr. Lusk demonstrated the ability to sit, stand, and walk on an occasional basis and perform minimal bending, reaching, and squatting. He was unable to perform any kneeling, crawling, or climbing of ladders or scaffolds. In conclusion, Mr. Smith opined that Mr. Lusk is not capable of performing any full-time work on an eight hour per day, five day per week basis at any level, including sedentary.

         On July 9, 2013, Robert Walker, M.D., performed an independent medical evaluation and ultimately found Mr. Lusk had a combined total of 56% whole person impairment for all of his compensable conditions. In an addendum, Dr. Walker opined that it was impossible for Mr. Lusk to pursue substantial gainful employment. On January 31, 2014, Casey Vass, a qualified rehabilitation provider, authored a vocational evaluation report. Mr. Vass concluded that Mr. Lusk was unable to engage in substantial, gainful employment at any exertional level on a fulltime basis. He noted that Mr. Lusk's inability to walk without a cane or walker eliminated all light, medium, and heavy jobs. Mr. Vass further stated that Mr. Lusk's need to elevate his ...


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