Appeal No. 2051670 (Claim No. 2011010863)
Virden was granted 0% permanent partial disability for her
drug reaction with eosinophilia and systemic symptoms (DRESS
syndrome). 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
Virden developed carpal tunnel syndrome as the result of her
work activities. She also developed trigger finger of the
right thumb and underwent a release of the trigger finger on
August 3, 2012. Following the surgery, she developed an
infection which was treated with antibiotics. Ms. Virden had
an adverse reaction to the antibiotics, including a severe
rash, and was diagnosed with a drug reaction, DRESS syndrome
Prior to the diagnosis of DRESS syndrome, Ms. Virden was
awarded 3% permanent partial disability on April 2, 2012, as
well as 6% permanent partial disability on September 17,
2013. On July 22, 2015, after the addition of DRESS syndrome
as a compensable component of the claim, Ms. Virden was
awarded 0% permanent partial disability for that aspect of
the claim. This appeal followed.
Virden underwent independent medical evaluations by Sushil
Sethi, M.D., Bruce Guberman, M.D., and ChuanFang Jin, M.D.
Dr. Sethi evaluated Ms. Virden on July 2, 2015, when he noted
Ms. Virden had mild right hand achiness but no rash and no
recurrence of rash, eruption of the skin or any other
suggestion of DRESS syndrome. Dr. Sethi assessed 0%
impairment for the DRESS syndrome as there were no signs or
symptoms of the disorder noted. Ms. Virden had no limitations
in performing her activities of daily living, and she had
required no follow-up treatment. He assessed her impairment
according to Table 2 Class 1 on page 280 of the American
Medical Association's Guides to the Evaluation of
Permanent Impairment (4th ed. 1993).
Guberman evaluated Ms. Virden on November 5, 2015. Ms. Virden
told him she had sensitivity to heat, cold, and the sun which
required the use of sunblock, and that her skin was very dry,
even with the use of lotion. She also reported developing
"pressure hives" when she sat or rested on a hard
surface. The hives last for two to three days and improved
with ointment. Dr. Guberman diagnosed bilateral carpal tunnel
syndrome, postsurgical release; right thumb tenosynovitis,
status postsurgical release; complication with infection of
the surgical wound after trigger finger release; status post
multiple debridement procedures; and history of drug reaction
to antibiotics for MRSA infection of the right hand following
trigger-finger release. He assessed 11% impairment for the
right upper extremity for the right carpal tunnel syndrome
and 3% impairment for the skin disorder which he combined for
14% whole person impairment. In Dr. Guberman's opinion,
Ms. Virden qualified for the higher impairment for the skin
disorder due to her rash.
evaluated Ms. Virden on June 29, 2016. She noted Ms. Virden
developed trigger finger in the right thumb after her carpal
tunnel surgery and underwent a release of the trigger finger
of the right thumb on August 3, 2012. The surgical site
became infected and Ms. Virden was treated with IV
antibiotics to which she had an adverse reaction. She
developed a severe skin eruption and was eventually diagnosed
with DRESS. During the evaluation, Ms. Virden reported
continued and constant moderate pain in her right hand as
well as trouble holding things with her right hand and
sensitivity to heat. Dr. Jin found no skin rash, skin
atrophy, skin pigmentation, and no scar formation. She
diagnosed history of bilateral carpal tunnel syndrome, status
postsurgical release, right thumb tenosynovitis, status
postsurgical release, complication with infection of the
surgical wound after trigger finger release, status post
multiple debridement procedures, and status post skin
eruption with a diagnosis of DRESS syndrome. Dr. Jin noted
Ms. Virden had not mentioned any problem with sensitivity to
heat to her the first time she evaluated Ms. Virden.
Additionally, Ms. Virden's medical records showed she had
not discussed heat sensitivity with her treating physicians.
Dr. Jin assessed no ratable impairment due to the skin
eruption as it was completely resolved with no objective
evidence of ongoing pathology. In Dr. Jin's opinion, the
DRESS syndrome was healed and resolved.
October 17, 2016, Opinion, the Office of Judges noted Ms.
Virden's previous permanent partial disability awards.
Ms. Virden asserted that she was entitled to an additional
award of permanent partial disability based on Dr.
Guberman's report. The Office of Judges found that the
weight of the evidentiary record established Ms. Virden had
no impairment due to the DRESS syndrome. Dr. Guberman
assessed 3% impairment for a skin disorder, but that
assessment was not consistent with the reports of Drs. Jin
and Sethi. Neither Dr. Jin nor Dr. Sethi found clinical
evidence of a rash, ulcer, or change in her skin condition.
Ms. Virden was no longer receiving treatment for the skin
condition. The Office of Judges determined Dr. Guberman's
assessment was based solely upon Ms. Virden's subjective
complaints. Therefore, it found that she failed to
demonstrate by a preponderance of the evidence that she had
more than 0% permanent partial disability for the DRESS
syndrome. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed
its Order on April 28, 2017.
Virden, through her attorney Patrick Maroney, argues she is
entitled to an additional 3% permanent partial disability
award, based on the report of Dr. Guberman. The Homer
Laughlin China Company, through its attorney Lucinda
Fluharty, argues the reliable and probative evidence of
record supports the award of 0% permanent partial disability.
review, we agree with the findings of fact and conclusions of
law of the Office of Judges as affirmed by the Board of
Review. The American Medical Association's Guides to
the Evaluation of Permanent Impairment states:
The signs and symptoms of disorders in classes 1 and 2 may be
intermittent and not present at the time of the examination.
The impact of the skin disorder on daily activities should be
the primary consideration in determining the class of
impairment. The frequency and intensity of signs and symptoms
and the frequency and complexity of medical treatment should
guide the selection of an appropriate impairment percentage
and estimate within any class.
Guberman placed Ms. Virden in a class 1 impairment and
assessed 3% impairment for the skin disorder, namely the
rash. However, Drs. Jin and Sethi disagreed and both assessed
0% impairment. Their assessments are more in line with the
American Medical Association's Guides to the
Evaluation of Permanent Impairment. The skin disorder
has no impact on Ms. Virden's activities of daily living
other than the need for the daily use of lotion and the use
of sunblock occasionally. Using the example espoused by Ms.
Virden's attorney, she would need to exhibit some type of
change in the pigmentation of the skin which was susceptible
to sunburn and required the use of sunblock for outdoor work
and other activities. Ms. Virden had no changes in
pigmentation that made her more susceptible to sunburn and
working outside was not part of her daily work activities.
Ms. Virden had no residual impairment due to the DRESS
syndrome. Therefore, the reliance on the reports of Drs. Jin
and Sethi was not misplaced.
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 ...