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Farmer v. West Virginia Office of Insurance Commissioner

Supreme Court of West Virginia

December 7, 2017

WARREN E. FARMER Claimant Below, Petitioner
v.
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER Commissioner Below, Respondent and POINT MINING, INC., Employer Below, Respondent

         (BOR Appeal No. 2051422) (Claim No. 2002025695)

          MEMORANDUM DECISION

         Petitioner Warren E. Farmer, by John H. Shumate, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. West Virginia Office of the Insurance Commissioner, by Brandolyn Felton-Ernest, its attorney, filed a timely response.

         The issue on appeal is whether Mr. Farmer meets the threshold for further consideration of a permanent total disability award. The claims administrator denied the application for permanent total disability on August 21, 2015. The Office of Judges affirmed the claims administrator's decision on June 17, 2016. The Board of Review affirmed the Order of the Office of Judges on December 16, 2016. 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. Farmer was employed as a coal miner for over twenty-five years, during which time he sustained several work-related injuries. In 1972, he was electrocuted in a mine accident. Arthur Poffenbarger, M.D., stated his impression was severe electrical shock with a loss of consciousness, lacerations, and burns. Mr. Farmer experienced anxiety, insomnia, and headaches. Dr. Poffenbarger opined that the headaches were due to muscle spasms associated with soft tissue injury and not due to any neurological damage. Mr. Farmer also had post-traumatic neurosis.

         On October 2, 1975, Daniel D. Opthegrove, M.D., noted that Mr. Farmer sought treatment for severe headaches and crying spells of three years duration. He was hospitalized for three weeks, during which a neurological work-up was completed. The discharge diagnosis was adjustment reaction to adult life. Mr. Farmer was prescribed medications and advised to attend group therapy.

         Joseph Seltzer, M.D., performed an independent medical evaluation on November 25, 1977. Mr. Farmer complained of slight headaches as well as nervous shaking spells and dizziness. Dr. Seltzer recommended 5% permanent disability, which was mostly for the post-traumatic neurosis. On December 13, 1977, the claims administrator granted Mr. Farmer a 5% permanent partial disability award in claim number 720054892.

         On March 8, 1978, William Rossman, M.D., performed an independent medical evaluation. He noted that Mr. Farmer's symptoms included headaches across the frontal and occipital area of the head and nervous tension, which included periodic shaking, tension, irritability, and some insomnia. Dr. Rossman's impression was mild psychoneurosis anxiety state related to trauma. He suggested 15% whole person impairment. The claims administrator granted Mr. Farmer an additional 5% permanent partial disability award on October 9, 1978.

         Dreama Baker, a Clinical Psychologist with Raleigh Psychiatric Services, indicated in a report dated April 4, 1979, that Mr. Farmer underwent testing that indicated he was a rather cautious and wary individual who does not readily extend trust to others, and is not readily accessible on an emotional level. Ms. Baker diagnosed anxiety reaction in consequence of electrical accident. On April 4, 1979, M. K. Hasan, M.D., of Raleigh Psychiatric Services, Inc., stated his impression was an anxiety reaction with impairment being mild to moderate. Dr. Hasan recommended 5% whole person impairment. On November 15, 1979, the claims administrator's Order was set aside by the Office of Judges and Mr. Farmer was awarded a 10% permanent partial disability award, 5% for burns and 5% for psychiatric impairment, in claim number 720054892.

         On April 4, 1985, R.A. Crawford, M.D., recommended that an additional 3% award, for a total of 13% permanent partial disability, be granted due to a deep scar in the right forehead and chronic callus formation on all the toes of the right foot and the great toe of the left foot. On August 12, 1984, a medical report noted the presence of a scar located on the right forehead. There was no evidence of contracture and no functional problems related to the scar. There was no evidence of visible scars on either foot, but there were large calluses located on the medial aspect of each big toe. 1% whole person impairment was assessed for the scars. Mr. Farmer was granted an additional 1% permanent partial disability in addition to the 10% previously granted in claim number 720054892 on September 6, 1984.

         On January 8, 1986, Mr. Farmer sought treatment from Kwan Ho Lee, M.D., following his injury at work. Dr. Lee reported that Mr. Farmer injured his left foot when a ram car backed over it at work on June 7, 1985. This was claim number 850058216. Mr. Farmer was diagnosed with an undisplaced fracture of the middle cuneiform bone of the left foot and placed in a cast. Dr. Lee assessed 2% whole person impairment and the claims administrator granted Mr. Farmer a 2% permanent partial disability on March 13, 1986.

         Over the course of his employment, Mr. Farmer developed symptoms associated with occupational pneumoconiosis and filed a claim for benefits. On June 13, 2000, Mr. Farmer was examined by the Occupational Pneumoconiosis Board in claim number 2000044985. The Occupational Pneumoconiosis Board recommended 15% whole person impairment attributable to occupational pneumoconiosis. Significant findings were due to ventilatory studies and clinical findings made by the Board, on June 13, 2000. Chest x-rays showed insufficient pleural or parenchymal changes to establish a diagnosis of occupational pneumoconiosis. In accordance with the findings of the Occupational Pneumoconiosis Board the claims administrator granted Mr. Farmer a 15% permanent partial disability award.

         On October 26, 2000, Mr. Farmer injured his right knee and filed claim number 2001024583. On March 15, 2001, Saghir Mir, M.D., evaluated Mr. Farmer for his right knee injury and diagnosed a right knee sprain of the medial collateral ligament and medial capsule as well as pre-existing early osteoarthritis of the medial compartment of the right knee. Mr. Farmer was deemed to have reached his maximum degree of medical improvement and suffered from 2% whole person impairment. In accordance with Dr. Mir's report, the claims administrator granted Mr. Farmer a 2% permanent partial disability award on June 14, 2001.

         On February 4, 2004, Dr. Mir evaluated Mr. Farmer for another injury in claim number 2002025695. Dr. Mir noted that he got pinned in the mines and was treated at Appalachian Regional Hospital. X-rays were negative for fractures but revealed pre-existing arthritis in both knees especially on the medial side of the right knee. X-rays of his pelvis and hips were negative for any arthritis. After review of the medical records, test reports, surgical reports, histories, and physical examination, Dr. Mir recommended 15% impairment for the right total knee arthroplasty, 15% for the left total knee arthroplasty, 1% for the right greater trochanteric bursitis, and 1% for the left greater trochanteric bursitis, for a total of 30% whole person impairment. He apportioned 5% to pre-existing medial meniscal surgery of the right knee in 1968 and 2% for the previous right knee injury in claim 2001024583. His final total ...


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