STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

FILED 

December 20, 2013 

RORY L. PERRY II, CLERK 

CLARENCE C. BLANKENSHIP, 

Claimant Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs.) No. 12-0447 (BOR Appeal No. 2046425) 

(Claim No. 960020718) 

WEST VIRGINIA OFFICE OF 

INSURANCE COMMISSIONER 

Commissioner Below, Respondent 

and 

C & G LEASING, INC., 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Clarence C. Blankenship, by John C. Blair, his attorney, appeals the decision of 

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

Insurance Commissioner, by Brandolyn N. Felton-Ernest, its attorney, filed a timely response. 

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

which the Board affirmed a September 2, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 29, 

2010, Order denying Mr. Blankenship’s request for permanent total disability benefits. 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. 

Mr. Blankenship worked as a mechanic for C & G Leasing, Inc. when he sustained an 

injury to his back on October 10, 1995. Dr. Guberman found in May of 2000 that Mr. 

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Blankenship had a 12% impairment for the lumbar spine, an 8% impairment for the thoracic 

spine, a 2% impairment for the loss of sensation in the right leg, and a 20% impairment for 

sexual dysfunction. Mr. Blankenship submitted a request for permanent total disability on June 9, 

2003. The claims administrator denied Mr. Blankenship permanent total disability benefits 

because he failed to meet the whole person medical impairment threshold. 

The Office of Judges held that Mr. Blankenship had not met the required 40% whole 

person impairment threshold of West Virginia Code § 23-4-6(n) (1999). Mr. Blankenship 

disagrees and asserts that he has an overall combined whole person impairment rating of 48%, 

which clearly meets the 40% threshold. The West Virginia Office of Insurance Commissioner 

maintains that Mr. Blankenship’s whole person impairment is 33%, which does not meet the 

requisite 40% threshold. Dr. Forberg in his November 6, 2003, report recommended a 2% 

impairment for the right knee, and a 14% impairment for the lumbar spine for a combined total 

of 16% impairment. The Permanent Total Disability Review Board noted that Dr. Walker 

recommended 9% whole person impairment for sexual dysfunction, and that 9% combined with 

the 26% whole person impairment previously found by the Permanent Total Disability Review 

Board was a total of 33% whole person impairment. 

The Office of Judges concluded that the Permanent Total Disability Review Board has 

the statutory authority to make a decision based on impairment regardless of the amount of 

permanent partial disability award that has been granted to Mr. Blankenship. The Office of 

Judges found that the Permanent Total Disability Review Board’s recommendation of a total of 

33% whole person impairment is supported by the overall medical record, and therefore, Mr. 

Blankenship has not demonstrated that he met the 40% whole person impairment threshold of 

West Virginia Code § 23-4-6(n) (1999). The Board of Review reached the same reasoned 

conclusions in its decision of March 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: December 20, 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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