Appeal No. 2051042, Claim No. 2007213119
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.
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.
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
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.
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
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.
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.
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.
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
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
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.
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
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 ...