STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS FILED 

March 6, 2013
 

RORY L. PERRY II, CLERK
 

RONALD ADKINS, SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 11-0787	 (BOR Appeal No. 2045333) 

(Claim No. 960017089) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

COW CREEK COAL COMPANY, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Ronald Adkins, by John Blair, his attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance 

Commissioner, by Jon Snyder, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated April 18, 2011, in 

which the Board affirmed a November 17, 2010, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 27, 2009, 

decision denying further consideration of Mr. Adkins’s request for permanent total disability 

benefits because he did not meet the necessary statutory threshold. 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. 

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Mr. Adkins was most recently employed as a scoop operator with Cow Creek Coal 

Company. He filed an application for permanent total disability benefits on June 11, 2003. Mr. 

Adkins has undergone multiple independent medical evaluations in order to determine the 

amount of permanent impairment attributable to his compensable injuries. On June 14, 2000, Dr. 

Shah recommended a 12% psychiatric permanent partial disability award, and on October 7, 

2002, Dr. Faheem recommended a 15% psychiatric permanent partial disability award. On May 

13, 2003, Dr. Grady recommended a 16% permanent partial disability award for the cervical 

spine, a 4% permanent partial disability award for the thoracic spine, and a 14% permanent 

partial disability award for the lumbar spine. Dr. Weise recommended a 5% psychiatric 

permanent partial disability award on July 10, 2007. On March 19, 2009, the Permanent Total 

Disability Review Board stated in its final recommendations that Mr. Adkins failed to meet the 

whole person impairment threshold required for further consideration of permanent total 

disability benefits pursuant to West Virginia Code § 23-4-6(n)(1) (1999). The Permanent Total 

Disability Review Board found that the evaluations by Drs. Grady and Weise presented the most 

accurate assessment of the amount of Mr. Adkins’s whole person impairment. The Permanent 

Total Disability Review Board then found that Mr. Adkins suffered a total whole person 

impairment of 34%. On November 9, 2009, Dr. Poletajev examined Mr. Adkins and 

recommended a permanent partial disability award of 49% for his back, shoulder, and psychiatric 

problems. Dr. Poletajev also found Mr. Adkins to be permanently and totally disabled. On May 

19, 2010, Dr. Bachwitt recommended a 31% permanent partial disability award for injuries to 

Mr. Adkins’s back and shoulder. 

In its Order affirming the claims administrator’s March 27, 2009, decision, the Office of 

Judges held that Mr. Adkins failed to meet the statutory threshold necessary for further 

consideration of permanent total disability benefits. Mr. Adkins disputes this finding and asserts 

that the evidence of record demonstrates that he is permanently and totally disabled. 

The Office of Judges noted that only Dr. Poletajev, a chiropractor, found that Mr. Adkins 

met the statutory threshold. The Office of Judges then found that Dr. Poletajev’s opinion is 

entitled to less weight than the opinions of Drs. Grady and Bachwitt. The Office of Judges 

further found that Dr. Poletajev overestimated the amount of Mr. Adkins’s lumbar spine 

impairment, and noted that Dr. Poletajev was the only physician of record to find significant 

lumbar radiculopathy. Additionally, the Office of Judges found that Dr. Weise’s psychiatric 

permanent impairment recommendation is the most recent and persuasive, and that Dr. 

Poletajev’s opinion as a chiropractor is not reliable with regard to psychiatric issues. The Board 

of Review reached the same reasoned conclusions in its decision of April 18, 2011. We agree 

with the reasoning and conclusions of the Board of Review. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

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Affirmed. 

ISSUED: March 6, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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