WARREN E. FARMER Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER Commissioner Below, Respondent and POINT MINING, INC., Employer Below, Respondent
Appeal No. 2051422) (Claim No. 2002025695)
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.
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.
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
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
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
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.
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.
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.
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.
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.
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.
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.
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 ...