The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
RICKY JOHNSON, December 6, 2024
Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
v.) No. 24-ICA-250 (JCN: 2015034120) OF WEST VIRGINIA
PINNACLE MINING COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Ricky Johnson appeals the May 22, 2024, order of the Workers’
Compensation Board of Review (“Board”). Respondent Pinnacle Mining Company,
(“Pinnacle”) filed a timely response.1 Mr. Johnson did not reply. The issue on appeal is
whether the Board erred in affirming the claim administrator’s order, which denied Mr.
Johnson’s application for permanent total disability (“PTD”) benefits.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
On May 7, 2018, Mr. Johnson signed his Application for Permanent Total Disability
Benefits and submitted a summary of permanent partial disability awards, totaling 95%.
Mr. Johnson received multiple PPD awards in separate claims including: 14% for a right
hand injury with reduced range of motion of the right hand, dysesthetic sensation, and loss
of grip strength in JCN 990058065; 10% for a right shoulder injury in JCN 990068758;
12% for injuries to his right and left wrist in JCN 2001017278; 1% for a scar on his nose
in JCN 2004050295; 4% for a right ankle injury in JCN 2008013837; 13% for chronic
lumbosacral spine sprain/strain syndrome with aggravation of degenerative disease and
was L5-S1 motor radiculopathy on the right in JCN 2007037222; 10% for occupational
pneumoconiosis (“OP”) in JCN 2009078908; 18% for a left tibia fracture and related
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Mr. Johnson is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
Pinnacle is represented by T. Jonathan Cook, Esq.
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hindfoot impairment, 7% for the left ankle, 2% for the right wrist, and 4% for psychiatric
impairment for a total of 31% in claim number 3015154693.2
Mr. Johnson was evaluated by David Soulsby, M.D., on May 21, 2019. Using the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th
ed. 1993) (“Guides”), Dr. Soulsby concluded that Mr. Johnson had 5% right shoulder
impairment, 17% right hand and wrist impairment from both carpal tunnel syndrome and
crush injury, 2% for left carpal tunnel syndrome, 8% for the lumbar spine, 1% for the right
ankle, and 9% for the left ankle. Under the combined values chart on page 322 of the
Guides, Dr. Soulsby found a total of 36% whole person impairment (“WPI”). Dr. Soulsby
noted that Mr. Johnson had previously received a 10% award for OP and 4% for psychiatric
impairment, which combined for a total of 14% WPI. Dr. Soulsby combined the 36% with
14%, using the combined values chart, for a total of 45% WPI related to all compensable
injuries.
On May 16, 2022, the Permanent Total Disability Review Board (“PTDRB”) issued
its initial recommendations. Relying on Dr. Soulsby’s evaluation, the PTDRB found that
Mr. Johnson had a total of 45% whole person impairment from all of his compensable
injuries and diseases. Accordingly, the PTDRB found Mr. Johnson did not suffer from a
medical impairment of at least 50% whole body impairment and has not sustained a 35%
or greater statutory disability. Thus, the PTDRB found that Mr. Johnson had failed to meet
the required level of whole-body medical impairment necessary for further consideration
of his eligibility for a PTD award and the application for permanent total disability should
be denied. In its final recommendations dated September 12, 2022, the PTDRB upheld its
initial recommendation of May 16, 2022, determining that Dr. Soulsby’s report dated May
21, 2019, was the most current and accurate assessment of Mr. Johnson’s whole body
medical impairment from his orthopedic occupational injuries. Thus, the PTDRB
recommended that Mr. Johnson’s application for PTD be denied. On February 8, 2023, the
claim administrator issued an order rejecting Mr. Johnson’s application for PTD benefits
based on the PTDRB’s recommendation.
Bruce Guberman, M.D., issued a report dated March 10, 2023, evaluating Mr.
Johnson. Using the Guides, Dr. Guberman found that Mr. Johnson had 5% WPI for his
decreased range of motion his right shoulder, 8% WPI for his cervical injuries, 8% WPI
for his two lumbar spine injuries, 4% WPI for his right ankle injury, 14% WPI for the left
ankle, 10% WPI for occupational pneumoconiosis, and 4% WPI for the psychological
aspect of the left tibia fracture. These impairments were combined for a total of 50% WPI.
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The Board disregarded two alleged PPD awards reported by Mr. Johnson: a 12%
award for carpal tunnel syndrome in JCN 2001017278; and 10% for a right shoulder injury
in JCN 990068758. The Board found that the orders granting those awards were not
submitted into the record. The Board noted that without considering those awards, Mr.
Johnson has been granted a total of 73% in PPD awards.
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Dr. Guberman noted that Mr. Johnson underwent surgery for his right shoulder, but he was
unaware of the type of surgery that was required.
On May 22, 2024, the Board affirmed the claim administrator’s order, which
rejected Mr. Johnson’s application for PTD benefits. The Board found that Mr. Johnson
failed to establish that he had 50% or more WPI related to his compensable injuries. Mr.
Johnson now appeals the Board’s order.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).
On appeal, Mr. Johnson argues that the preponderance of the evidence establishes
that he has sustained 50% or more whole person impairment, thus satisfying the threshold
of whole-body medical impairment necessary to qualify for a PTD award. Mr. Johnson
focuses on the total of PPD he has received in his many claims over the years (at a
minimum, 64%) and asserts that it is against reason that he does not meet the 50% whole
person impairment threshold. Mr. Johnson further argues that the Board disregarded the
evidence of record and ignored the fact that Dr. Soulsby’s report conflicts with the PPD
awards that were granted in this case, which equal 95% in total. We disagree.
West Virginia Code § 23-4-6(n)(1) (2005) provides:
in order to be eligible to apply for an award of permanent total disability
benefits for all injuries incurred and all diseases, including occupational
pneumoconiosis, regardless of the date of last exposure . . . . a claimant: (A)
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Must have been awarded the sum of fifty percent in prior permanent partial
disability awards; (B) must have suffered a single occupational injury or
disease which results in a finding by the commission that the claimant has
suffered a medical impairment of fifty percent; or (C) has sustained a thirty-
five percent statutory disability pursuant to the provisions of subdivision (f)
of this section. Upon filing an application, the claim will be reevaluated by
the examining board . . . . to determine if the claimant has suffered a whole-
body medical impairment of fifty percent or more resulting from either a
single occupational injury or occupational disease or a combination of
occupational injuries and occupational diseases.
Here, the Board determined that there is no reliable medical opinion on record
establishing that Mr. Johnson has sustained WPI of 50% or more from his compensable
injuries as required by West Virginia Code § 23-4-6(n)(1). The Board found that Dr.
Guberman’s report was not reliable because he was the only evaluator to include a rating
for the cervical spine, his range of motion deficit findings were an outlier, and he was
unaware of the type of right shoulder surgery undergone by Mr. Jonhson. Ultimately, the
Board found that Mr. Johnson failed to establish that he was entitled to PTD benefits.
Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Johnson failed to establish with medical evidence that he has 50% or more impairment
related to his compensable injuries. As the Supreme Court of Appeals of West Virginia has
set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are
deferential ones which presume an agency’s actions are valid as long as the decision is
supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W.
Va. 442, 473 S.E.2d 483 (1996). With this deferential standard of review in mind, we
cannot conclude that the Board was clearly wrong in affirming the claim administrator’s
order denying Mr. Johnson’s application for PTD benefits.
Accordingly, we affirm the Board’s May 22, 2024, order.
Affirmed.
ISSUED: December 6, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
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