STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 2, 2014 

RORY L. PERRY II, CLERK 

DAVID D. KEENER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0165	 (BOR Appeal No. 2048621) 

(Claim No. 2001028544) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

ISLAND FORK CONSTRUCTION, LTD, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner David D. Keener, by Edwin Pancake, his attorney, appeals the decision of the 

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

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

This appeal arises from the Board of Review’s Final Order dated January 24, 2014, in 

which the Board affirmed a July 12, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 26, 2011, 

decision denying Mr. Keener’s request for a permanent total disability award. 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. Keener filed an application for permanent total disability benefits on May 27, 2005, 

after sustaining multiple work-related injuries over the course of several years and amassing 54% 

in prior permanent partial disability awards. On August 14, 2007, Paul Bachwitt, M.D., 

performed an independent medical evaluation and found that Mr. Keener sustained 8% whole 

person impairment for injuries to his right wrist, 2% whole person impairment for fractures of his 

seventh and eighth ribs, 5% whole person impairment for range of motion abnormalities in the 

lumbar spine, and 20% whole person impairment as a result of gait derangement arising from a 

crush injury to Mr. Keener’s left leg. He then applied the Combined Values Chart contained in 

the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 

1993) and concluded that Mr. Keener sustained 32% whole person impairment as a result of his 

compensable injuries. 

On March 18, 2011, the Permanent Total Disability Review Board issued its final 

recommendation and determined that Mr. Keener failed to meet the 50% whole person 

impairment threshold required for further consideration of permanent total disability benefits 

pursuant to West Virginia Code § 23-4-6(n)(1) (2005). The Permanent Total Disability Review 

Board found that Dr. Bachwitt’s independent medical evaluation is reliable and credible, and 

further found that it is the most current and accurate assessment of Mr. Keener’s amount of 

whole person impairment. However, it determined that Dr. Bachwitt’s finding that Mr. Keener 

sustained 5% whole person impairment as a result of range of motion abnormalities in the 

lumbar spine should be modified to reflect 8% whole person impairment arising from range of 

motion abnormalities in the lumbar spine. It further found that Mr. Keener sustained 10% whole 

person impairment as a result of occupational pneumoconiosis. The Permanent Total Disability 

Review Board then determined that according to the American Medical Association’s Guides to 

the Evaluation of Permanent Impairment, Mr. Keener sustained 40% whole person impairment 

as a result of his compensable injuries. 

On July 26, 2011, the claims administrator denied Mr. Keener’s request for a permanent 

total disability award. On September 5, 2012, Bruce Guberman, M.D., performed an independent 

medical evaluation for the purpose of determining the amount of permanent impairment arising 

from the crush injury to Mr. Keener’s left leg. Dr. Guberman determined that Mr. Keener 

sustained 28% whole person impairment as a result of range of motion impairment, sensory loss, 

peripheral vascular disease, edema and superficial ulceration, and multiple surgical scars. In its 

Order affirming the July 26, 2011, claims administrator’s decision, the Office of Judges held that 

Mr. Keener failed to meet the 50% whole person impairment threshold necessary for further 

consideration of a permanent total disability award pursuant to West Virginia Code § 23-4­

6(n)(1). The Board of Review affirmed the conclusions of the Office of Judges in its decision 

dated January 24, 2014. 

Mr. Keener amassed 54% in prior permanent partial disability awards, which makes his 

application for permanent total disability benefits reviewable by the Permanent Total Disability 

Review Board pursuant to West Virginia Code § 23-4-6(n)(1). Upon review, the Permanent 

Total Disability Review Board concluded that Mr. Keener has not met the 50% whole person 

threshold necessary for further consideration of permanent total disability benefits pursuant to 

West Virginia Code § 23-4-6(n)(1). On appeal, Mr. Keener asserts that when assessing his 

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amount of whole person impairment, the Combined Values Chart contained in the American 

Medical Association’s Guides to the Evaluation of Permanent Impairment should not be utilized. 

Mr. Keener further asserts that the Permanent Total Disability Review Board erred in utilizing 

the Combined Values Chart, and the Office of Judges and Board of Review erred in relying on 

the Permanent Total Disability Review Board’s conclusions. 

West Virginia Code § 23-4-6(n)(1) provides that a claimant will be reevaluated “pursuant 

to subdivision (i) of this section” for the purpose of determining whether the claimant sustained 

50% or more whole person impairment, as is required for further consideration of permanent 

total disability benefits. West Virginia Code § 23-4-6(i) (2005) mandates the adoption of 

standards for the evaluation and determination of a claimant’s whole person impairment, which 

are codified in West Virginia Code of State Rules § 85-20-65.1 (2006). In turn, West Virginia 

Code of State Rules § 85-20-65.1 states that the amount of whole person impairment should be 

determined in accordance with the American Medical Association’s Guides to the Evaluation of 

Permanent Impairment, which instruct that the Combined Values Chart be used when 

determining the amount of whole person impairment. Therefore, the Permanent Total Disability 

Review Board’s use of the Combined Values Chart was not only proper, but necessary. 

Further, Mr. Keener argues that the Office of Judges and Board of Review erred in not 

applying the findings regarding the left leg contained in Dr. Guberman’s report. Although the 

Office of Judges accepted the analysis of the Permanent Total Disability Review Board, the 

Office of Judges performed an analysis using Dr. Guberman’s conclusions and determined that 

Mr. Keener would still fall short of the 50% whole person impairment threshold necessary for 

further consideration of a permanent total disability award. In performing its analysis, the Office 

of Judges utilized the Combined Values Chart which, as described above, is required. It is 

therefore clear that with or without the inclusion of Dr. Guberman’s report, Mr. Keener has 

failed to meet the 50% whole person impairment threshold necessary for further consideration of 

permanent total disability benefits pursuant to West Virginia Code § 23-4-6(n)(1). 

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. 

Affirmed. 

ISSUED: December 2, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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