Appeal No. 2050772) (Claim No. 2011010941)
Fortune Brands, by Aimee M. Stern and Denise D. Pentino, its
attorneys, appeals the decision of the West Virginia
Workers' Compensation Board of Review. Mylinda L.
Kimball-Shepherd, by George Zivkovich, her attorney, filed a
appeal arises from the Board of Review's Final Order
dated February 25, 2016, in which the Board reversed an
August 21, 2015, Order of the Workers' Compensation
Office of Judges and granted a 10% permanent partial
disability award. In its Order, the Office of Judges affirmed
the claims administrator's December 19, 2013, decision
which granted a 5% permanent partial disability award. The
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration.
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 that the Board of Review's decision is
based upon material misstatements or mischaracterizations of
the evidentiary record. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.
Kimball-Shepherd, a lead quality assurance technician, was
injured in the course of her employment on September 13,
2010, when she was struck by a fork truck. The claim was held
compensable for sacroilitis, sciatica, contusion of the
buttocks, thoracic sprain/strain, lumbar sprain/strain, right
hip strain, and right leg contusion. A lumbar MRI taken on
April 22, 2011, showed a mild, diffuse central L5-S1 disc
protrusion. There was no significant foraminal narrowing.
Thrush, M.D., performed an independent medical evaluation on
June 10, 2011, in which he found Ms. Kimball-Shepherd was at
maximum medical improvement and required no further
treatment. He stated that the vast majority of lumbar
sprains/strains resolve in three to six months but
occasionally, subjective pain lasts beyond the normal healing
time. The reason for this is unclear but it appears Ms.
Kimball-Shepherd falls into that category. Dr. Thrush found
that her MRI was consistent with her age. He noted that she
was capable of returning to her prior work schedule.
Kimball-Shepherd was treated by Teresita deJosef, M.D.,
between November of 2011 and February of 2013. She indicated
that she diagnosed a soft tissue injury on November 28, 2011.
On January 13, 2012, it was noted that Ms. Kimball-Shepherd
saw Rammy Gold, M.D., for an EMG, and Dr. Gold suggested pain
management injections in the hip and a spine infusion after
the injections. On August 20, 2012, a note indicates she had
a series of cortisone shots which did not help. Ms.
Kimball-Shepherd refused surgery because the pain was in her
hip, not her back.
Kimball-Shepherd was treated at PARS Neurosurgical Associates
from January 12, 2012, through July 3, 2012. On January 12,
2012, a history and physical were performed by Sheena Geer,
FNP, BC. She stated that Dr. Gold felt that the degenerative
disc at L5-S1 was the cause of Ms. Kimball-Shepherd's
pain and recommended the PARS pain clinic consultation for
evaluation and treatment. The diagnoses were listed as
degeneration of lumbar disc and lumbosacral
neuritis/radiculopathy. On April 23, 2012, an EMG was normal.
A progress note dated Mary 3, 2012, indicated Ms.
Kimball-Shepherd reported lower back and right hip pain. She
was referred to the pain clinic. An MRI taken on August 23,
2012, of the right hip was normal and there was no evidence
of lumbar disc herniation.
functional capacity evaluation by First Settlement Physical
Therapy on September 17, 2012, it was determined that Ms.
Kimball-Shepherd's self-reported problems and physical
limitations were only partially substantiated by objective
findings. She did seem to have underlying legitimate right
hip pain. She reported no back pain but was self-limiting
with several inconsistent measurements when distracted.
Sethi, M.D., performed an independent medical evaluation on
October 10, 2013, in which he found that Ms.
Kimball-Shepherd's conditions had stabilized and she had
reached maximum medical improvement. He stated that multiple
investigations as well as MRIs had been negative for the
lumbar area and a right hip MRI was normal. He also noted
that his examination that day was completely normal for the
right hip. Using the American Medical Association's
Guides to the Evaluation of Permanent Impairment
(4th ed. 1993), Dr. Sethi found 0% right hip impairment. For
the lumbar spine, he assessed 5% impairment. He placed Ms.
Kimball-Shepherd in Lumbar Category II from West Virginia
Code of State Rules § 85-20-C (2006). For the thoracic
spine, he found 0% impairment. His total, combined rating was
therefore 5% impairment. In an addendum, Dr. Sethi stated
that he reviewed the entire medical record as well as his
prior examination. He reiterated that he found Ms.
Kimball-Shepherd's conditions had stabilized and she had
reached maximum medical improvement. He said that his
evaluation found no residuals of sciatica. The sacroilitis
had also resolved. He confirmed his assessment of 5%
impairment. Based on his evaluation, the claims administrator
granted a 5% permanent partial disability award on December
Guberman, M.D., performed an independent medical evaluation
on September 25, 2014, in which he diagnosed chronic
post-traumatic lumbar strain, disc protrusion at L5-S1,
resolved thoracic sprain, and status post right hip
contusion. Dr. Guberman found Ms. Kimball-Shepherd had
reached maximum medical improvement for the conditions. He
recommended she be referred to a pain clinic because ongoing
medical management would be necessary. Dr. Guberman assessed
0% thoracic spine impairment. For the lumbar spine he found
10% impairment using the American Medical Association's
Guides and placed Ms. Kimball-Shepherd in Category
II of West Virginia Code of State Rules § 85-20-C. He
adjusted the impairment to 8%. Dr. Guberman explained that he
placed Ms. Kimball-Shepherd in Category II for the lumbar
spine because she had a lumbar sprain/strain and a disc
protrusion. He stated that Ms. Kimball-Shepherd had symptoms
strongly suggestive of right sided lumbar radiculopathy but
did not meet the criteria for Category III. For the right
hip, he assessed 2% impairment. His total assessment was 10%
whole person impairment.
Office of Judges affirmed the claims administrator's
grant of a 5% permanent partial disability award in its
August 21, 2015, Order. It found that both Drs. Sethi and
Guberman found Ms. Kimball-Shepherd was at maximum medical
improvement. Dr. Sethi found 0% WPI for the right hip and 5%
for the lumbar spine whereas Dr. Guberman found 2% for the
right hip and 8% for the lumbar spine. The Office of Judges
noted that Fortune Brands argued before it that Dr.
Guberman's report is not reliable. It asserted that Dr.
Guberman included a non-compensable lumbar disc protrusion in
his lumbar spine assessment. It further argued that the 2%
impairment for the right hip was unwarranted as the right hip
MRI was normal and there was no other objective evidence to
support the right hip complains. The Office of Judges
ultimately agreed with Fortune Brands and found that Dr.
Sethi's report was more reliable than that of Dr.
Board of Review reversed the Office of Judges' Order and
granted a 10% permanent partial disabilty award on February
25, 2016. The Board of Review found that Dr. Guberman set
forth objective findings and made specific Table citations
from the American Medical Association's Guides
and West Virginia Code of State Rules § 85-20. It
determined his report was relevant, credible, material, and
review, we agree with the reasoning and conclusions of the
Office of Judges. The Office of Judges correctly found that
Dr. Sethi's independent medical evaluation was more
reliable than that of Dr. Guberman. Both physicians correctly
used the American Medical Association's Guides
and West Virginia Code of State Rules § 85-20. However,
Dr. Guberman's lumbar impairment rating included a
non-compensable condition as he said in his report that his
rating was based on a lumbar sprain/strain and a disc
protrusion. No such disc protrusion has been held compensable
in the claim. ...