FOREST A. ADKINS, Claimant Below, Petitioner
SWVA, INC., Employer/Claimant Below, Respondent
Appeal No. 2050921, Claim No. 2012020814
Forest A. Adkins, by Edwin H. Pancake, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. SWVA, Inc., by Steven K. Wellman, its
attorney, filed a timely response.
issue on appeal is the appropriate amount of permanent
partial disability related to the compensable injury. On
September 16, 2014, the claims administrator granted a 1%
permanent partial disability award. The Office of Judges
affirmed the decision in its November 4, 2015, Order. The
Order was affirmed by the Board of Review on May 3, 2016. 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
Adkins, a laborer for SWVA, Inc., injured his left shoulder
on June 30, 2011, when he was using a sledgehammer during the
course of his employment. The claim was rejected and, on
appeal, the Office of Judges held the claim compensable for a
left shoulder injury in February of 2013. On August 28, 2014,
Marsha Bailey, M.D., issued an independent medical evaluation
report based upon an independent medical examination of Mr.
Adkins. She found that Mr. Adkins had made a remarkable
recovery and had regained full range of motion in the left
shoulder. Dr. Bailey found that Mr. Adkins had a pre-existing
diagnosis of impingement syndrome, which was not uncommon in
a man of his age. He returned to work without restrictions
just seven months after the surgery. Dr. Bailey found that
Mr. Adkins had reached maximum medical improvement. For the
left shoulder flexion deficit, Dr. Bailey assessed 1% upper
extremity impairment from Figure 38 of the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993). She found no other ratable
impairment and found that he suffered from 1% whole person
impairment. Based upon Dr. Bailey's recommendation, the
claims administrator granted Mr. Adkins a 1% permanent
partial disability award on September 16, 2014.
report dated January 20, 2015, Bruce Guberman, M.D., after
completing an independent medical evaluation, found Mr.
Adkins to be at maximum medical improvement. For range of
motion deficit in flexion and extension of the left shoulder,
he recommended 3% upper extremity impairment from Figure 38
of the American Medical Association's Guides.
For abduction and adduction, he recommended 2% upper
extremity impairment from Figure 41 of the American Medical
Association's Guides. For internal and external
rotation of the left shoulder, he recommended 2% upper
extremity impairment from Figure 44 of the American Medical
Association's Guides. He combined all the
findings to reach 7% combined upper extremity impairment,
which was 4% whole man impairment.
August 3, 2015, Dr. Bailey provided a supplemental
examination report. Dr. Bailey noted that she was aware of
Mr. Adkins's previous right shoulder injury, which
occurred on February 18, 2007. Both she and Dr. Guberman
evaluated Mr. Adkins regarding the prior injury. Dr. Bailey
pointed out that Dr. Guberman found 1% whole person
impairment in the left shoulder for range of motion deficit
in 2008, but he did not subtract or consider it in his 2015
report. On December 15, 2008, Dr. Guberman examined Mr.
Adkins for the purposes of an independent medical evaluation
of his right shoulder. While determining impairment, Dr.
Guberman used the uninjured left shoulder to assess the level
of impairment of the right shoulder. Dr. Guberman found
pre-existing degenerative changes in the left shoulder. He
deducted 1% impairment from the right shoulder based upon the
degenerative changes in the left shoulder. Dr. Bailey
concluded that Dr. Guberman's January 20, 2015, report
was inconsistent and inaccurate because it did not take into
account his previous independent medical evaluation performed
in 2008. Dr. Bailey also found that Dr. Gubeman's report
was not as useful because it deviated from her assessment as
well as the assessment made by Jack Steel, M.D. Dr. Steel,
Mr. Adkins's treating orthopedic physician, found 180
degrees of flexion, which was similar to her finding of 173
degrees. This was far different than Dr. Guberman's 150
degree finding. Dr. Guberman only found 60 degrees of
external rotation whereas Dr. Bailey and Dr. Steel found 80
degrees. Also, Dr. Guberman found 60 degrees of internal
rotation, while Drs. Bailey and Steel found 80 degrees or
November 4, 2015, the Office of Judges determined that the
evidence of record demonstrated Mr. Adkins is entitled to a
1% permanent partial disability award related to his
compensable left shoulder injury. The Office of Judges found
that Dr. Guberman's range of motion measurements were not
as reliable as the consistent findings of Dr. Bailey and Dr.
Steel. The Office of Judges reasoned that even if Dr.
Guberman's measurements were accurate, they can only be
explained by the progression of pre-existing degenerative
conditions. Further, the Office of Judges noted that Dr.
Guberman did not explain why he did not deduct the 1% whole
person impairment he found existed in the left shoulder in
2008 from his 2015 final impairment rating. Because of these
two issues the Office of Judges found that Dr. Bailey's
report was a more reliable indicator of whole person
impairment. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order on May 3, 2016.
review, we agree with the consistent decisions of the Office
of Judges and Board of Review. It was proper for the Office
of Judges and Board of Review to adopt the report of Dr.
Bailey because her report did not contain the inconsistencies
that Dr. Guberman's contained. Dr. Guberman did not
explain why he did not deduct the previously found 1% whole
person impairment he assessed in 2008. Further his range of
motion measurements were not consistent with the other
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. ...