BILLEY C. FOLEY, Claimant Below, Petitioner
PINNACLE MINING COMPANY, LLC, Employer Below, Respondent
Appeal No. 2050864, Claim No. 2014030230
Billey C. Foley, by Reginald D. Henry, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Pinnacle Mining Company, LLC, by H. Dill
Battle III, its attorney, filed a timely response.
issue on appeal is the appropriate amount of a permanent
partial disability award to be granted to Mr. Foley as a
result of the compensable injury in this claim. This appeal
originated from the October 28, 2014, claims
administrator's decision granting a 1% permanent partial
disability award. In its October 14, 2015, Order, the
Workers' Compensation Office of Judges affirmed the
decision. The Board of Review's Final Order dated March
24, 2016, affirmed the Order of the Office of Judges. 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 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
C. Foley, a coal miner, was injured in the course of his
employment on April 10, 2014, when he attempted to lift and
move a belt machine by himself. An MRI taken on April 24,
2014, revealed Mr. Foley tore a right biceps tendon,
resulting in a right distal biceps rupture. S. Brett
Whitfield, M.D., performed surgery to repair the right distal
biceps rupture on May 5, 2014. Mr. Foley has undergone three
independent medical evaluations to evaluate the degree of
permanent impairment arising from the compensable injury.
September 14, 2014, Mr. Foley underwent an independent
medical evaluation performed by Jerry Scott, M.D. Dr. Scott
diagnosed a distal biceps tendon rupture with a tear of the
biceps belly and a flexor carpi radialis tear. Dr. Scott
determined Mr. Foley had reached maximum medical improvement
and could return to work with no restrictions. Dr. Scott took
range of motion measurements of Mr. Foley's elbows and
assessed 2% upper extremity impairment. This converted to 1%
whole person impairment, which was his final recommendation.
The claims administrator granted Mr. Foley a 1% permanent
partial disability award based on Dr. Scott's report.
October 21, 2014, Mr. Foley returned to Dr. Whitfield for a
post-surgery follow-up. Dr. Whitfield noted that range of
motion for the right elbow was full with supination and with
resisted elbow flexion. Motor strength was normal. Dr.
Whitfield opined that Mr. Foley could return to work without
any restrictions. He advised Mr. Foley that his injured arm
would be sore with use from time to time.
February 3, 2015, Mr. Foley underwent an independent medical
evaluation performed by Bruce Guberman, M.D. Dr. Guberman
noted that Mr. Foley complained of constant pain, stiffness,
warmth, and occasional swelling of the right arm. Dr.
Guberman took range of motion measurements. He also noted
there was some weakness in Mr. Foley's grip strength,
which was measured with a Jamar dynamometer. Dr. Guberman
assessed 2% upper extremity impairment for the range of
motion in the flexion and extension at the right elbow. He
added 1% for supination and pronation of the elbow. For loss
of grip strength, Dr. Guberman assessed 14% impairment, which
converted to 10% whole person impairment. Combining the
ratings, Dr. Guberman concluded Mr. Foley had 13% upper
extremity impairment which converted to 8% whole person
Mr. Foley underwent an independent medical evaluation
performed by Syam Stoll, M.D., on July 21, 2015. Dr. Stoll
noted that Mr. Foley complained of pain and numbness in the
injured right arm. Dr. Stoll took range of motion
measurements and noted that Mr. Foley had full active range
of motion of the shoulder with external and internal rotation
as well as abduction and adduction. Range of motion
measurements were also taken for the right elbow. In testing
for grip strength in Mr. Foley's right hand, Dr. Stoll
used a Jamar dynamometer and found that in almost all tests,
Mr. Foley's strength was greater in the injured right
upper extremity than in the left. Dr. Stoll determined that
Mr. Foley's subjective complaints of right hand weakness
were unrelated to the compensable injury and assessed 1%
whole person impairment due to range of motion deficit. Dr.
Stoll ended his report by commenting on some inaccuracies and
inconsistencies in Dr. Guberman's report. Dr. Stoll found
that Mr. Foley's injured right arm was actually stronger
than the uninjured arm, the exact opposite finding of Dr.
Guberman. Additionally, Dr. Guberman failed to mention in his
report the positions at which he was testing grip strength,
information crucial to the reliability of the measurements.
Dr. Stoll also noted that Dr. Guberman assessed 14%
impairment for loss of grip strength, a percentage that is
uncommonly high. Dr. Guberman attributed the loss of grip
strength to the compensable injury, however, anatomically,
the biceps and flexor carpi radialis do not aid in grip
strength. Further, the American Medical Association's
Guides to the Evaluation of Permanent Impairment
(4th ed. 1993) do not assign large roles to strength
measurements because the contributors believe more research
is needed before loss of grip strength is given a larger role
in the impairment evaluation. Dr. Stoll opined that Dr.
Guberman was incorrect to assign such a large impairment to
loss of grip strength. Finally, Dr. Stoll noted some
inconsistencies in Mr. Foley's account of how much the
belt weighed. Mr. Whitfield noted the equipment weighed 150
pounds, while Dr. Guberman noted it weighed 300 pounds. Mr.
Foley advised Dr. Stoll that the equipment weighed 250
pounds. Mr. Foley claimed to have lifted the belt with only
his right hand. Dr. Stoll indicated this was not plausible as
it would be the equivalent of being able to deadlift 500
pounds with both hands and Mr. Foley did not appear to have
Office of Judges affirmed the claims administrator's
decision on October 14, 2015. The Office of Judges found that
a preponderance of the evidence supports affirming a 1%
permanent partial disability award. It noted that Dr.
Guberman's findings were not supported by any other
doctor, including Mr. Foley's treating physician. The
Office of Judges stated that if Dr. Guberman's report was
to be believed, Mr. Foley would have suffered a tremendous
decrease in function between his post-surgery follow-up
appointment with Dr. Whitfield and the independent medical
evaluation with Dr. Guberman. Equally surprising would be the
fact that Mr. Foley seemed to fully recover by the time Dr.
Stoll examined him five months later. The Office of Judges
determined Dr. Guberman's report was not as reliable as
the opinions of Dr. Stoll and Dr. Scott, both of whom
recommended 1% whole person impairment. Accordingly, the
Office of Judges affirmed the claims administrator's
decision granting a 1% permanent partial disability award.
The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on March 24, 2016.
agree with the reasoning and conclusions of the Office of
Judges as affirmed by the Board of Review. Dr. Whitfield and
two of the evaluating physicians noted that Mr. Foley appears
well-healed and able to return to work without any
restrictions. Dr. Guberman produced impairment ratings that
have not been found by any other physician. Both Dr. Scott
and Dr. Stoll assessed a 1% impairment rating, which is
supported by the medical evidence of record.
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
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...