Appeal No. 2051501) (Claim No. 2014021465)
Tammy Parsons, by Otis R. Mann Jr., her attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Big Sandy Furniture, Inc., by Lisa Warner Hunter,
its attorney, filed a timely response.
issue presented in the instant appeal is the amount of
permanent partial disability resulting from a compensable
injury. On July 7, 2015, the claims administrator entered an
order granting no permanent partial disability award. The
Workers' Compensation Office of Judges affirmed the
claims administrator's decision on July 29, 2016. This
appeal arises from the Board of Review's Final Order
dated December 16, 2016, in which the Board 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
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
Parsons, an inventory clerk, filed a Report of Injury stating
that she sustained injuries to her left hip, left side of her
back, right arm and left shoulder on January 24, 2014, when
she fell on a ladder. Ms. Parsons reported her left shoulder
struck a box of Sauder entertainment systems so forcefully
that she dented the box. She immediately sought medical
treatment at MedExpress Urgent Care, and it was determined
that she had sustained an occupational injury. Ms. Parsons
sought treatment with David Felder, M.D., on February 4,
2014, for her left shoulder pain. Dr. Felder reported that
x-rays of the shoulder, elbow and wrist did not show any
evidence of fractures or dislocations. He stated that Ms.
Parsons's discomfort had improved. Dr. Felder's
assessment of Ms. Parsons's condition was a diagnosis of
a sprained left shoulder and she was referred to physical
therapy. Dr. Felder stated that Ms. Parsons may return to
work on February 5, 2014, with no lifting or pulling with the
upper left extremity.
February 10, 2014, the claims administrator approved the
claim for dislocation of the left shoulder. Ms. Parsons was
eligible for temporary total disability benefits from January
25, 2014, through February 4, 2014. On February 11, 2014, Ms.
Parsons had her initial physical therapy evaluation at
MedCare Therapy Center. On February 21, 2014, Ms. Parsons
returned to MedCare for her fifth physical therapy session
and reported she was doing much better. Ms. Parsons was
ultimately released to return to work on February 25, 2014,
with no restrictions.
Parsons was treated by Timothy Deer, M.D., on September 17,
2014, with a chief complaint of low back pain and bilateral
leg pain. Dr. Deer stated that an MRI dated May 6, 2014,
showed that Ms. Parsons suffers from a bulging disc at L5-S1,
degenerative change with reactive endplate changes and mild
bilateral neural foraminal narrowing. Dr. Deer's
assessments were lumbar disc degeneration, lumbar spondylosis
and lumbar radiculopathy. He recommended Ms. Parsons remain
off work for six to eight weeks, and ordered bilateral lumbar
facet joint injections to treat the lumbosacral spondylosis.
independent medical report dated June 25, 2015, Marsha
Bailey, M.D., diagnosed Ms. Parsons with chronic lumbar pain
without true lumbar radiculopathy. Dr. Bailey noted that her
left shoulder strain and contusion resolved uneventfully with
the help of five physical therapy sessions. Dr. Bailey found
Ms. Parsons's shoulder examinations to be completely
normal, with full range of motion measurements, asymptomatic
and equal to her uninjured right shoulder. For the fully
resolved left shoulder, Dr. Bailey assessed 0% whole person
impairment. In regard to lumbar complaints, Ms. Parsons was
assessed at 5% whole person impairment under the Range of
Motion method of the American Medical Association, Guides
to the Evaluation of Permanent Impairment,
(4th ed. 1993). She found that Ms. Parsons is
classified under Lumbar Category I of West Virginia Code of
State Rules §85-20-C (2006) with the impairment range of
0% whole person impairment. Because the Range of Motion
impairment of 5% does not fall within the accepted range, Dr.
Bailey adjusted the lumbar impairment to 0% pursuant to West
Virginia Code of State Rules § 85-20-1 (2006). On July
7, 2015, the claims administrator granted Ms. Parsons no
permanent partial disability award based on the medical
report of Dr. Bailey.
A. Guberman, M.D., submitted an independent medical
examination dated November 18, 2015. Dr. Guberman found that
Ms. Parsons's symptoms had improved, but had not entirely
resolved. His impression was chronic post-traumatic strain of
the lumbar spine, with a spinal cord stimulator placement,
and chronic post-traumatic strain of the left shoulder. Dr.
Guberman found 2% whole person impairment for the left
shoulder. Dr. Guberman also found 5% whole person impairment
for the lumbar spine.
Addendum Report was prepared by Dr. Bailey on January 25,
2016. Dr. Bailey stated that she reviewed Dr. Guberman's
assessment and believes that her impairment recommendation is
a more accurate reflection of Ms. Parsons's impairment as
a result of her compensable injury. Dr. Bailey stated that
Dr. Guberman assigned impairment ratings for unrelated,
preexisting and non-compensable conditions.
29, 2016, the Office of Judges affirmed the granting of no
permanent partial disability award for injuries in the claim.
The Office of Judges deemed Dr. Bailey's assessment to be
the most persuasive report on the issue of permanent partial
disability. Dr. Bailey noted that Ms. Parsons's MRI dated
May 6, 2014, revealed only degenerative findings without any
acute injury related changes or disc herniation. Dr. Bailey
also noted that Ms. Parsons has a history of back pain and
had previously been diagnosed with degenerative disc disease
of the lumbar spine, lumbar spondylosis and lumbar
radiculopathy, which were all pre-existing, unrelated to the
compensable injuries and non-compensable diagnoses. Given Ms.
Parsons's history of lumbar pain, the Office of Judges
was not persuaded by the 5% lumbar rating by Dr. Guberman. In
fact, the Office of Judges stated that it appears that Dr.
Guberman did not consider Ms. Parsons's condition
regarding the lumbar spine prior to the injury in this claim.
Likewise, the Office of Judges found Dr. Bailey's
assessment of the spinal cord stimulator to be the most
persuasive evidence of true impairment. Dr. Bailey did not
find any whole person impairment relating to the spinal cord
stimulator because it was placed to treat Ms. Parsons's
preexisting conditions, and the scar arose out of treatment
for non-compensable diagnoses.
Office of Judges concluded that Ms. Parsons failed to show
that the claims administrator erred in granting no permanent
partial disability award for injuries in her claim. The Board
of Review adopted the findings of fact and conclusions of law
of the Office of Judges and affirmed its Order on December
16, 2016. We agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review.
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 ...