GREGORY G. LAWRENCE, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER, Commissioner below, Respondent and POWER CONSTRUCTION & MAINTENANCE, INC., Employer Below, Respondent
Appeal No. 2051428, Claim No. 930048488
Gregory G. Lawrence, by J. Thomas Green Jr., his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. The Insurance Commissioner of
West Virginia, in its capacity as administrator of the Old
Fund, by Brandolyn N. Felton-Ernest, its attorney, filed a
issue presented in the instant appeal is the amount of
permanent partial disability impairment for Mr.
Lawrence's right shoulder injury. On February 27, 2015,
the claims administrator granted no additional permanent
partial disability. The Workers' Compensation Office of
Judges affirmed the claims administrator's Order in a
decision dated June 28, 2016. This appeal arises from the
Board of Review's Final Order dated December 16, 2016, in
which the Board affirmed the decision 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 that the Board of Review's decision is
based upon a material misstatement or mischaracterization 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.
March 23, 1993, Mr. Lawrence sustained an injury to his
lumbar spine, cervical spine and his right shoulder while
lifting a heavy coal nozzle. During the lifetime of his
claim, Mr. Lawrence has been granted 21% permanent partial
disability for his lumbar spine, 14% permanent partial
disability for his cervical spine and 4% permanent partial
disability for his right shoulder. The ratings for his lumbar
and cervical spine have been established and resolved to
finality years ago. The issue now pending on appeal is
whether Mr. Lawrence should be granted an additional
permanent partial disability award, over and above his prior
rating for his right shoulder component of the claim.
August 2, 2014, Joseph A. Snead, M.D., performed an
independent medical evaluation to determine the extent of
impairment of Mr. Lawrence for his injuries. Dr. Snead stated
that the previously assigned ratings of 21% for the lumbar
component of the claim, and the 14% rating for the cervical
component remain the same. Mr. Lawrence reported persistent
pain and functional limitation in his right shoulder at the
time of evaluation. During examination, Dr. Snead noted
positive impingement upon internal rotation and crepitation.
Dr. Snead concluded that Mr. Lawrence has a 12% impairment of
the right shoulder.
February 20, 2015, Mr. Lawrence was evaluated by Robert B.
Walker, M.D., for an independent medical examination. Dr.
Walker found Mr. Lawrence's symptoms to be active, but
stable, and declared him to have reached maximum medical
improvement for his injuries. Dr. Walker did not mention Mr.
Lawrence's right shoulder injury and failed to address
the right shoulder as a component of the claim. Instead, Dr.
Walker concluded that Mr. Lawrence has an 11% whole person
impairment for his lumbar injuries, less any prior awards.
February 27, 2015, the claims administrator notified Mr.
Lawrence that no additional permanent partial disability had
resulted from his compensable injury and stated that he had
been fully compensated by his prior 4% permanent partial
disability award. The Office of Judges affirmed the claims
administrator's Order on June 28, 2016, and incorrectly
concluded that the right shoulder is not a component of the
claim. Accordingly, the Office of Judges found that Mr.
Lawrence has been fully compensated for his compensable
December 16, 2016, the Board of Review affirmed the decision
of the Office of Judges. However, the Board of Review did not
adopt the conclusion of law that the right shoulder is not a
compensable component of the claim. The Board noted that this
Court granted Mr. Lawrence a 4% permanent partial disability
award for the right shoulder on August 13, 2009. The Board went
on to find that the preponderance of the evidence does not
establish that the 12% impairment of the right shoulder found
by Dr. Snead is related to Mr. Lawrence's injury of March
review, we disagree with the decision of the Board of Review.
The Board of Review concluded that the preponderance of the
evidence does not establish that the impairment rating
assigned by Dr. Snead is related to Mr. Lawrence's
injury. In his letter to counsel for Mr. Lawrence, Dr. Snead
clearly states that he performed an evaluation to determine
the extent of impairment Mr. Lawrence has in relation to the
compensable right shoulder element of his March 23, 1993,
work injury. Dr. Snead noted that Mr. Lawrence suffers
persistent pain and functional limitation in his right
shoulder. Dr. Snead went on to find crepitation and positive
signs of impingement. Following a Range of Motion assessment
under the American Medical Association, Guides to the
Evaluation of Permanent Impairment (4th Ed.
1993), Dr. Snead found a 12% impairment rating for Mr.
Lawrence's right shoulder.
only other impairment evaluation in the record is from Dr.
Walker, who failed to mention the right shoulder as a
compensable component of the claim. In light of the evidence,
it appears that this appeal should be remanded for a further
development of the evidentiary record regarding any residual
impairment from Mr. Lawrence's right shoulder. Although
Dr. Snead found crepitation and positive signs of impingement
as limitations of Mr. Lawrence's right shoulder, another
evaluation should be performed to determine the true amount
of impairment for the right shoulder injury.
foregoing reasons, we find that the decision of the Board of
Review is the result of an erroneous conclusion of law.
Therefore, the decision of the Board of Review is reversed,
and this case is remanded for a further development of the
evidentiary record to determine the impairment for the
compensable right shoulder injury.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...