STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

March 18, 2014 

RORY L. PERRY II, CLERK 

FERLIN T. CARPENTER, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0193	 (BOR Appeal No. 2046242) 

(Claim No. 980054242) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

AUSTIN CONSTRUCTION COMPANY, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Ferlin T. Carpenter, by Gregory Sproles, his attorney, appeals the decision of 

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

Insurance Commissioner, by Mary Rich Maloy, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated January 23, 2012, in 

which the Board affirmed an August 12, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 8, 2010, 

decision denying Mr. Carpenter’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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This Court notes that the record provided on appeal in support of Mr. Carpenter’s request 

for a permanent total disability award is exceedingly limited. On December 8, 2010, the claims 

administrator denied Mr. Carpenter’s request for a permanent total disability award based on a 

finding that he failed to meet the requisite 50% whole person impairment threshold. In its Order 

affirming the December 8, 2010, claims administrator’s decision, the Office of Judges held that a 

preponderance of the evidence does not establish that Mr. Carpenter has met the requisite 50% 

whole person impairment threshold pursuant to West Virginia Code § 23-4-6(n)(1) (2005). On 

appeal, Mr. Carpenter asserts that he is entitled to a permanent total disability award because he 

has amassed more than 50% in prior permanent partial disability awards. 

Pursuant to West Virginia Code § 23-4-6(n)(1), in order to apply for a permanent total 

disability award, a claimant must have been awarded a sum totaling 50% in permanent partial 

disability awards or 35% in statutory awards; after meeting this requirement, the Permanent 

Total Disability Review Board must evaluate the claimant and make a finding that he has 

sustained a 50% or more whole person impairment or 35% in statutory disability awards in order 

to be eligible for further consideration of a permanent total disability award. 

The Office of Judges found that Mr. Carpenter has received 52% in prior permanent 

partial disability awards, and therefore was eligible for further consideration of permanent total 

disability benefits. The Office of Judges then found that upon said further consideration, 

pursuant to West Virginia Code § 23-4-6(n)(1), the Permanent Total Disability Review Board 

concluded that Mr. Carpenter has 27% whole person impairment. The Office of Judges found 

that based upon the Permanent Total Disability Review Board’s conclusions, Mr. Carpenter has 

failed to meet the requisite 50% whole person impairment threshold. The Office of Judges noted 

that Mr. Carpenter relies on the fact that he has received 52% in prior permanent partial 

disability awards. However, the Office of Judges took care to explain that 52% in prior awards 

does not necessarily equate with 52% whole person impairment. The Board of Review reached 

the same reasoned conclusions in its decision of January 23, 2012. 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. 

Affirmed. 

ISSUED: March 18, 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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