Appeal No. 2051571 (Claim No. 2010128905)
Harris was granted a 0% permanent partial disability award
for a low back injury. We are asked to determine whether the
award was proper. We find that that it was based upon the
evidentiary record. We further find upon consideration of the
standard of review, the briefs, and the record, that there is
no substantial question of law or prejudicial error
necessitating oral argument. As such, a memorandum opinion is
appropriate under Rule 21 of the Rules of Appellate
Harris, a laborer, injured her low back on March 9, 2010,
when she was cleaning out a refrigerator. The claim was held
compensable for a lumbar sprain/strain. Marsha Bailey, M.D.,
performed an independent medical evaluation on December 18,
2014. She diagnosed chronic lower back pain without
radiculopathy. Dr. Bailey noted a significant amount of
symptom magnification with Ms. Harris's subjective
complaints grossly outweighing the objective findings. Dr.
Bailey found Ms. Harris's range of motion measurements
were invalid for rating purposes, as they were all restricted
by pain. Using the range of motion model, Dr. Bailey assessed
5% whole person impairment according to Table 75 of the
American Medical Association's Guides to the
Evaluation of Permanent Impairment (4 ed. 1993). She
then adjusted the 5% impairment rating to 0% whole person
impairment according to Rule 20 of the West Virginia Code of
State Rules (2006). Dr. Bailey opined that Ms. Harris had no
significant clinical findings and no neurologic impairment.
Dr. Bailey attached the low back examination form she
completed as part of her evaluation to her written report.
Based on Dr. Bailey's evaluation, the claims
administrator granted Ms. Harris a 0% permanent partial
disability award on February 9, 2015.
Snead, M.D., performed an independent medical evaluation on
December 16, 2015. He diagnosed lumbar sprain/strain
associated with a bulging L3-L4 disc. Dr. Snead assessed 5%
whole person impairment according to Table 75 of the American
Medical Association's Guides to the Evaluation of
Permanent Impairment, and 13% whole person impairment
for restricted range of motion, which combined for 17% whole
person impairment. Dr. Snead reduced the 17% impairment to 8%
impairment according to Category 2 of Rule 20. The range of
motion chart on which Dr. Snead based the 13% impairment for
loss of range of motion was not included in his report. Dr.
Snead did not include the low back examination form with his
Bailey prepared an addendum to her report on March 4, 2016.
She opined that Dr. Snead made significant errors in his
impairment calculation, including the use of the DRE model
for his impairment recommendation. Dr. Bailey further opined
that Dr. Snead did not use the range of motion model
correctly, nor did he apply Rule 20 correctly. He failed to
attach the low back examination form to his report, which was
required to determine if Ms. Harris met validity criteria.
Without the form, it was not possible to determine if the
range of motion testing performed by Dr. Snead was valid.
Office of Judges affirmed the claims administrator's
award of 0% permanent partial disability in its September 22,
2016, Order. It noted that the two independent medical
evaluation reports in the record contained vastly different
impairment ratings. Dr. Bailey assessed 0% impairment, while
Dr. Snead assessed 17% impairment. The Office of Judges found
the report of Dr. Bailey to be the more accurate and reliable
assessment of impairment. West Virginia Code of State Rules
§85-20-66.2 (2006) requires that all narrative reports
include a completed low back examination form. A report and
opinion submitted without a completed low back examination
form had to be disregarded. As Dr. Snead failed to include
the low back examination form, his report had to be
disregarded. Dr. Bailey's report met the documentation
requirements of Rule 20. Therefore, Dr. Bailey's report
provided the only accurate and reliable assessment of
impairment in this claim.
Board of Review modified and adopted the findings of fact and
conclusions of law of the Office of Judges when it affirmed
the Office of Judges' Order on February 21, 2017. The
Board of Review modified the Order to reflect that Dr. Snead
found Ms. Harris had 17% impairment under the range of motion
model and that he adjusted his rating to 8% impairment. It
also noted Ms. Harris was seeking a 5% permanent partial
disability award. However, it did not appear that a physician
had assessed 5% impairment, nor recommended a 5% permanent
partial disability award. The Board of Review noted that in
Baria v. Capitol Beverage Company, No. 15-0056, 2015
WL 5883444 (W.Va. Oct. 7, 2015)(memorandum decision) we found
that utilizing select findings from medical reports would not
form a reliable basis for assessing the amount of whole
person impairment and resulting disability award.
Harris, through her attorney Robert Stultz, argues she is
entitled to an award of 5% permanent partial disability.
Encore Management Company, Inc., through its attorney Lisa
Warner Hunter, argues the reliable evidence of record
supports the 0% permanent partial disability award.
review, we agree with the findings of fact and conclusions of
law of the Office of Judges as adopted and modified by Board
of Review. It did not err when it relied on Dr. Bailey's
opinion and assessment of impairment of Ms. Harris. Ms.
Harris failed to submit a reliable assessment of her
impairment that could have been used to support an increased
permanent partial disability award.
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 mis characterization 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. ...