The opinion
FILED
February 20, 2024
C. CASEY FORBES, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Hughes Supply Company,
Employer Below, Petitioner
vs.) No. 22-550 (BOR Appeal No. 2057650)
(JCN: 2017000600)
M.B.,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Hughes Supply Company appeals the decision of the West Virginia Workers’
Compensation Board of Review (“Board of Review”). Respondent M.B. filed a timely response.1
The issue on appeal is M.B.’s entitlement to a permanent total disability award. The claims
administrator denied the request for a permanent total disability award on December 9, 2019. The
Workers’ Compensation Office of Judges (“Office of Judges”) reversed the claims administrator’s
order in its November 15, 2021, decision, and M.B. was granted a permanent total disability award
with an onset date of February 1, 2019. The award granted by the Office of Judges was affirmed
by the Board of Review on June 1, 2022. Upon our review, we determine that oral argument is
unnecessary and that a memorandum decision affirming the Board of Review’s decision is
appropriate. See W. Va. R. App. P. 21.
M.B. was injured on July 1, 2016, when he suffered an electric shock to multiple parts of
his body while working as an electrician for the employer. Because he suffered electric shock
throughout his body, the claimant needed surgery, including skin grafts. The claim was held
compensable on January 6, 2017. Eventually, the claims administrator added the following as
compensable conditions of the claims: (1) muscle weakness generalized; (2) third-degree burns to
the unspecified hand and bilateral forearm; (3) second-degree burn to the head, face, and neck; (4)
adhesive capsulitis of the right shoulder; (5) burns to 20-29% of the body surface with 0%-9%
third-degree burns; and (6) second degree burns to the abdominal wall and the unspecified thigh.
1
Hughes Supply Company is represented by Charity K. Lawrence, and M.B. is represented
by Reginald D. Henry. We use initials to identify parties in certain cases involving sensitive
information. See W. Va. R. App. Proc. 40(e).
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On May 10, 2018, Bruce Guberman, M.D., evaluated M.B. and opined that, as a result of
his injury, he could no longer play the guitar and would have difficulty picking up coins, writing,
and buttoning clothing. Dr. Guberman opined that M.B. was permanently disabled from all types
of employment, and recommended 76% whole person impairment, which did not include any
psychiatric impairment. By order dated July 5, 2018, the claims administrator granted M.B. a 76%
permanent partial disability award based on Dr. Guberman’s report.
In a report dated June 8, 2018, Prasadarao B. Mukkamala, M.D., stated that he evaluated
M.B. and determined that the claimant sustained severe burns from an electrocution at work. As a
result of the injury, M.B. developed adhesive capsulitis of the right shoulder, and his wound care
included skin grafting. He also received psychological counseling. Dr. Mukkamala found the
claimant to be at maximum medical improvement and stated that it was unlikely that the claimant
would be able to return to any type of work “with or without restrictions.” Dr. Mukkamala assessed
a total of 73% whole person impairment for the claim.
M.B. underwent psychological testing by Teresa D. Smith, Psy.D., on January 3, 2019,
which showed a marked amount of emotional distress and anxiety. The testing also revealed
depression, significant somatization, and that suicidal ideation may be present. Following the
psychological testing, the employer submitted a forensic psychiatric independent medical
evaluation report by Timothy L. Thistlethwaite, M.D., dated January 4, 2019. Dr. Thistlethwaite
concluded that M.B. was at maximum medical improvement and suffered from symptoms
consistent with mild to moderate impairment resulting in 10% psychiatric impairment. On January
22, 2019, the claims administrator granted M.B. a 10% permanent partial disability award based
upon the report of Dr. Thistlethwaite.
After receiving an award for psychiatric impairment, the claimant submitted his application
for permanent total disability benefits on February 21, 2019, listing 76% whole person impairment
due to his occupational injuries, and 10% whole person impairment due to his psychiatric injuries.
In the application, he stated that he worked as an electrician dating back to 1980. He indicated
that the medical conditions that prevented him from working included venous insufficiency,
shoulder joints, knees, hips, chronic nerve pain, inability to make a fist with either hand, inability
to kneel, inability to climb, inability to lift, lack of stamina, and the inability to sit for long periods
of time. M.B. stated that his wife was a licensed minister and in the past, he would support her by
playing the guitar and singing. As a result of his injuries, M.B. stated that he could no longer play
the guitar or use the tools that he used as an electrician. On March 28, 2019, an order was entered
finding that M.B. met the minimum requirement for further consideration of his entitlement to a
permanent total disability award because he had been granted at least 50% in permanent partial
disability awards.
On April 16, 2019, M.B. underwent a Function Capacity Evaluation (“FCE”) with Bobbie
Jo Chapman, an Occupational Therapist and Certified Hand Therapist, at Charleston Physical
Therapy Specialists. Ms. Chapman listed five discrepancies in the testing, including a finding of
no bell curve with the grip testing, and that the respondent was “untestable” on sensory testing.
Although there was evidence of self-limiting and stopping during the testing, the test results were
that the M.B.’s scars from grafting and burns affected his function. He did not have a full range of
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motion, sensation, and strength. Ms. Chapman’s clinical impression was that the evaluation did
not represent M.B.’s true functional capacity as it was believed that he exhibited insincere efforts
based on the discrepancies observed during testing. Ms. Chapman determined that M.B. qualified
for the light physical demand classification with no modifications needed for walking, sitting,
standing, and lifting up to twenty pounds occasionally, in a safe environment. In an Addendum
report dated May 1, 2019, Ms. Chapman addressed the surveillance video footage that was
provided by the claims administrator showing M.B. resting his arms in elbow extension and wrist
extension on the back of a pew while leaning against it. According to the video, M.B. was able to
shake hands, pick up and manage fretting, and pluck the strings of a bass guitar for more than
twenty minutes. He also used a microphone. The video further showed him using his hands,
clapping, and reaching overhead. At one point, M.B. helped to catch a woman who was falling
backward. The Addendum report noted that the behaviors observed in the video were inconsistent
with what was observed during the evaluation.
After reviewing the surveillance video, Dr. Mukkamala submitted a supplemental report
dated May 1, 2019, stating that he had recently received a letter, video footage, and an FCE report
concerning M.B.. Dr. Mukkamala said that at the time of the original evaluation, he opined that it
was unlikely that M.B. would be able to return to any type of work, with or without restrictions.
However, after reviewing the surveillance video, Dr. Mukkamala was of the opinion that M.B. was
capable of returning to work at a light physical demand level, and perhaps even at a medium
physical demand level if his material handling was limited to no more than twenty pounds on a
frequent basis and no more than thirty-five pounds on an occasional basis.
The petitioner submitted a PTD Independent Vocational Rehabilitation evaluation report
from Casey Vass, with Vass Vocational Services, Inc., dated May 29, 2019. According to the
report, M.B. indicated that he was unable to work due to his PTSD, which makes him irritable, as
well as being in constant pain. M.B. reported to Mr. Vass that he could not make a fist and was
unable to play his guitar more than a short duration of time. Mr. Vass found that M.B. would have
the ability to manage a work force or work, including as an electrician, electrician supervisor,
electrician inspector, or estimator. A labor market survey was conducted within a seventy five
mile radius of the respondent’s residence, but Mr. Vass reported that M.B. expressed no interest
in vocational rehabilitation because he considers himself disabled from competitive employment.
Because it was found that the M.B. may be able to work at the medium exertional level, Mr. Vass
believed that M.B. could return to his job as an electrician with a different employer.
The Permanent Total Disability Reviewing Board (“PTDRB”) issued an Initial
Recommendation on August 26, 2019, finding that M.B. had 76% whole person impairment due
to his occupational injuries and 10% whole person impairment due to his psychiatric injuries. It
was found that he met the minimum requirements for further consideration of a permanent total
disability award of either 50% impairment resulting from either a single occupational injury or
disease, or a combination thereof, or 35% or greater statutory disability pursuant to the provisions
of West Virginia Code § 23-4-6(f). M.B.’s application for a permanent total disability award was
to be evaluated under West Virginia Code § 23-4-6(n)(2) to determine whether the disability
rendered him unable to engage in a substantial gainful activity requiring skills or abilities that he
had or which could be acquired.
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The PTDRB determined that M.B. retained the ability to be employed in the current job
market because the results of the FCE placed him in the light physical demand level. The PTDRB
noted that the vocational evaluation by Casey Vass found that M.B. retained the functional ability
to return to work, and a market survey identified appropriate job openings within his physical
demand level. M.B. was not permanently and totally disabled due to his employment potential.
The PTDRB issued its final recommendation on December 6, 2019, with a protestable order
denying permanent total disability benefits on December 9, 2019.
In a hearing held before the Office of Judges on September 23, 2021, counsel for the
claimant argued that M.B. was entitled to the rebuttable presumption of permanent total disability
pursuant to West Virginia Code § 23-4-6(d).2 It was M.B.’s position that the preponderance of the
evidence established that he was unable to engage in substantial gainful activity requiring skills
and the inability to acquire new skills. In response, counsel for the petitioner argued that M.B.
failed to prove that the compensable injury prevented him from being able to return to gainful
employment because the most recent vocational assessment concluded that there were jobs in the
labor market that the claimant could perform.
In a final order dated November 15, 2021, the Office of Judges found that the claimant is
entitled to the presumption of a permanent total disability award pursuant to West Virginia Code
§ 23-4-6(d) because he has an aggregate permanent disability of more than eighty-five percent
disability. Although the petitioner was able to show that some of M.B.’s self-reported limitations
are exaggerated, the Office of Judges found that the employer did not fully rebut the presumption
of permanent total disability pursuant to West Virginia Code § 23-4-6(d). It was found that the
addendum and supplemental reports by Ms. Chapman and Dr. Mukkamala overstated what the
surveillance videos revealed because the videos did not prove that M.B. was capable of
maintaining a job over a full eight-hour workday for five days per week. The Office of Judges also
specifically stated that the vocational report submitted by Casey Vass was too vague in that it
lacked identification of the types of jobs Mr. Vass identified as appropriate for the claimant. Based
upon the evidence of record, the Office of Judges reversed the December 9, 2019, order of the
claims administrator and granted M.B. a permanent total disability award with an onset date of
February 1, 2019. In an order dated June 1, 2022, the Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed the permanent total disability award.
2
West Virginia Code § 23-4-6(d) provides, in pertinent part, as follows:
A single or aggregate permanent disability of eighty-five percent or more entitles
the employee to a rebuttable presumption of a permanent total disability for the
purpose of paragraph (2), subdivision (n) of this section: Provided, however, That
the claimant must also be at least fifty percent medically impaired upon a whole
body basis or has sustained a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section. The presumption may be rebutted if
the evidence establishes that the claimant is not permanently and totally disabled
pursuant to subdivision (n) of this section.
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This Court may not reweigh the evidentiary record, but must give deference to the findings,
reasoning, and conclusions of the Board of Review, and when the Board’s decision effectively
represents a reversal of a prior ruling of either the Workers’ Compensation Commission or the
Office of Judges, we may reverse or modify that decision only if it is in clear violation of
constitutional or statutory provisions, is clearly the result of erroneous conclusions of law, or is so
clearly wrong based upon the evidentiary record that even when all inferences are resolved in favor
of the Board’s findings, reasoning, and conclusions, there is insufficient support to sustain the
decision. See W. Va. Code § 23-5-15(c) & (e). We apply a de novo standard of review to questions
of law. See Justice v. W. Va. Off. of Ins. Comm’n, 230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012).
M.B. is entitled to the presumption of a permanent total disability award pursuant to West
Virginia Code § 23-4-6(d) because he has an aggregate permanent disability of more than 85%
percent disability. On appeal, the employer argues that M.B. failed to carry his burden of proving
that the compensable injury prevents him from working. However, the Office of Judges and Board
of Review concluded that the preponderance of the evidence establishes that M.B. sustained
permanent total disability as a result of his workplace injuries, and the employer did not rebut the
presumption. Because the order of the Office of Judges, as affirmed by the Board of Review, was
not clearly wrong based upon the evidentiary record, the Board of Review’s order is affirmed.
Affirmed.
ISSUED:
CONCURRED IN BY: February 20, 2024
Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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