Jerry Lesher v. Patriot Coal Corporation
20-0287
| W. Va. | Jul 19, 2021Background
- Claimant Jerry C. Lesher (coal miner) applied for a permanent total disability (PTD) award on June 26, 2017; he already had cumulative prior permanent partial disability (PPD) awards totaling 64%.
- Initial IME by Dr. Prasadarao Mukkamala (Jan. 10, 2017) rated whole-person impairment at 39% (adjusted to 41% with later pneumoconiosis addition); PTDRB ultimately recommended 42% and excluded carpal tunnel from the 50% threshold per statute.
- Claims administrator denied PTD (Feb. 27, 2018); PTDRB and claims administrator reasoning emphasized correct application of the AMA Guides and apportionment for preexisting conditions.
- Later IMEs: Dr. Bruce Guberman (Nov. 9, 2018) found 50% whole-person impairment; Dr. ChuangFang Jin (May 8, 2019) found 39% whole-person impairment and apportioned for degenerative disease.
- Office of Judges (Oct. 8, 2019) found Dr. Guberman’s opinions unreliable (used multiple evaluation methods, inconsistent knee/ROM findings) and affirmed denial of PTD; Board of Review affirmed (Apr. 14, 2020).
- Supreme Court of Appeals affirmed (Jul. 19, 2021), holding claimant failed to prove the required 50% whole-person impairment despite qualifying prior PPD awards.
Issues
| Issue | Lesher's Argument | Patriot Coal's Argument | Held |
|---|---|---|---|
| Whether Lesher met the 50% whole-person impairment threshold for PTD | Lesher argued combined impairments reach 50% (relying on Dr. Guberman and alternative ratings: higher lumbar/cervical categories, additional left ankle peripheral nerve and right knee ROM impairments) | Employer/administrative respondents argued the more reliable IMEs (Mukkamala/Jin) show ~39–42% and Guberman’s 50% is unreliable and contradicted by other evaluations | Court held Lesher failed to prove ≥50% whole-person impairment; PTD denial affirmed |
| Reliability of Dr. Guberman’s IME | Lesher relied on Guberman’s 50% combined rating and findings of radiculopathy/ROM deficits | Respondent and Office of Judges argued Guberman improperly used multiple evaluation methods for same impairment, assessed ROM deficits inconsistent with other IMEs, and thus his opinions are unreliable | Court accepted Office of Judges’ reasoning and rejected Guberman’s findings as unsupported by record |
| Inclusion of carpal tunnel and method selection under AMA Guides | Lesher sought to include various impairments and alternative rating methods to reach 50% | Respondent/boards applied statutory exclusion for carpal tunnel and required consistent AMA Guides methodology (use either diagnostic or exam criteria, not both) | Court upheld exclusion of carpal tunnel and adherence to single-method AMA Guides application |
| Existence of cervical/lumbar radiculopathy compensable impairments | Lesher asserted radiculopathy (supporting higher lumbar/cervical ratings) | Respondent noted no evaluator reliably found compensable radiculopathy and Office of Judges found no record support | Court agreed no evidence supported compensable radiculopathy; apportionment to noncompensable degenerative disease was appropriate |
Key Cases Cited
- Hammons v. West Virginia Off. of Ins. Comm'r, 235 W. Va. 577 (2015) (describes deference given to Board of Review findings in workers' compensation appeals)
- Justice v. West Virginia Office Ins. Comm'r, 230 W. Va. 80 (2012) (explains de novo review for questions of law in Board decisions)
- Davies v. West Virginia Off. of Ins. Comm'r, 227 W. Va. 330 (2011) (addresses standards of review applicable to workers' compensation appeals)