JERRY A. ROTENBERRY, JR, Claimant Below, Petitioner
WELCH EMERGENCY HOSPITAL, Employer Below, Respondent
Appeal No. 2051812) (Claim No. 2014007771)
Jerry A. Rotenberrry Jr., by Jerome McFadden, his attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Welch Emergency Hospital, by
Lisa Warner Hunter, its attorney, filed a timely response.
issue on appeal is the award of permanent partial disability
benefits. On August 10, 2015, the claims administrator
awarded 7% permanent partial disability. The Office of Judges
reversed the claims administrator in its February 2, 2017,
Order and granted 12% permanent partial disability. The Order
was reversed and vacated by the Board of Review on July 3,
2017, and the 7% permanent partial disability award granted
by the claims administrator was reinstated. The Court has
carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Rotenberry worked for Welch Community Hospital as a
construction worker and plumber for thirty-one years. On May
26, 2013, he alleged he sustained occupational injuries to
his wrists, fingers, hands, and arms due to installing
commercial water heaters and plumbing copper pipe and valve
frames while using pipe wrenches, crescent wrenches, drills,
and other tools. On July 10, 2013, Robert Kropac, M.D.,
diagnosed bilateral carpal tunnel syndrome with a ten-year
history of carpal tunnel syndrome. The claims administrator
held the claim compensable for bilateral carpal tunnel
syndrome on November 26, 2013.
Rotenberry underwent bilateral carpal tunnel releases in the
summer of 2014 and had successfully returned to work by that
September. He continued to work until January of 2015 when he
retired. Prasadarao Mukkamala, M.D., performed an independent
medical evaluation of Mr. Rotenberry on August 3, 2015, and
prepared his written report the next day. Mr. Rotenberry told
Dr. Mukkamala that he had occasional numbness in his hands
and that they felt weak and tired. Dr. Mukkamala noted Mr.
Rotenberry's history of diabetes and obesity, as well as
his long standing diagnosis of bilateral carpal tunnel
syndrome. Dr. Mukkamala diagnosed status post-surgical
release of bilateral carpal tunnel syndrome with a good
result. He assessed 3.5% whole person impairment for each
hand for a total of 7% whole person impairment.
claims administrator granted Mr. Rotenberry an award of 7%
permanent partial disability on August 10, 2015. Bruce
Guberman, M.D., performed an independent medical evaluation
on March 1, 2016. He noted Mr. Rotenberry first experienced
numbness, tingling, and pain in his hands thirteen to fifteen
years ago, when he was diagnosed with bilateral carpal tunnel
syndrome. According to Mr. Rotenberry, the carpal tunnel
releases only partially improved his symptoms as he continued
to experience bilateral numbness and tingling. Dr. Guberman
diagnosed bilateral carpal tunnel syndrome, status post
carpal tunnel release. He assessed 9% whole person impairment
for the left wrist and 6% whole person impairment for the
right wrist for a total of 14% whole person impairment.
Mukkamala prepared a supplemental report on September 28,
2016, after reviewing the report of Dr. Guberman. Dr.
Mukkamala disagreed with Dr. Guberman's assessment
because Mr. Rotenberry was fifty-five years of age,
significantly obese, and had a history of diabetes. Mr.
Rotenberry was six feet, one and a half inches tall and
weighed 332 pounds. Dr. Mukkamala opined that obesity and
diabetes both contribute to carpal tunnel syndrome and,
therefore, there were external factors present in relation to
the causation of Mr. Rotenberry's carpal tunnel syndrome.
Dr. Mukkamala noted that Mr. Rotenberry returned to work six
weeks after the August 2014, surgery for his right hand and
worked for four and a half months before deciding to retire.
Dr. Guberman's evaluation of Mr. Rotenberry took place
more than a year after he retired. In Dr. Mukkamala's
opinion, Dr. Guberman erred when he attributed the symptoms
described by Mr. Rotenberry to the bilateral carpal tunnel
syndrome, considering his diabetes and obesity. The 14%
impairment rating assessed by Dr. Guberman was based on
exaggerated symptoms. Additionally, the symptoms should be
attributed to many factors, not just the claim. Dr. Mukkamala
opined that his own assessment of 7% impairment was quite
liberal, as he did not apportion any of the impairment to
obesity and diabetes.
October 10, 2016, Marsha Bailey, M.D., performed an
independent medical evaluation. Mr. Rotenberry told her he
had constant numbness and pain in his wrists. She noted he
stopped working in January of 2015 due to chronic lower back
pain from a March 2014 injury. He had a fifteen-year history
of bilateral carpal tunnel symptoms, as well as a history of
diabetes, hypertension, and obesity. Dr. Bailey assessed 7%
impairment for bilateral carpal tunnel syndrome and
apportioned 6% to Mr. Rotenberry's uncontrolled diabetes
and morbid obesity. She also opined Dr. Guberman's
failure to apply West Virginia Code of State Rules §
85-20 (2006) rendered his report invalid.
February 2, 2017, the Office of Judges reversed the claims
administrator's award of 7% permanent partial disability
and granted a 12% permanent partial disability award. It
determined that the evidence showed that no apportionment
between occupational and non-occupational impairment should
be made based on Mr. Rotenberry's thirty-one-year
employment and his job duties. Moreover, the claim had been
held compensable for carpal tunnel syndrome. The Office of
Judges then found the impairment assessed by Dr. Guberman to
be the most persuasive. It reduced the 9% impairment for the
left wrist to 6% based on West Virginia Code of State Rules
§ 85-20. The Office of Judges then determined that Mr.
Rotenberry was entitled to 12% whole person impairment for
the bilateral carpal tunnel syndrome.
July 3, 2017, decision, the Board of Review reversed and
vacated the Office of Judges' Order and reinstated the 7%
permanent partial disability award. It found that the Office
of Judges' award of 12% permanent partial disability was
not recommended by any of the physicians. It also determined
"the Commissioner is to make permanent partial
disability awards solely on the basis of the doctor's
impairment evaluation." Repass v. Workers' Comp.
Div., 212 W.Va. 86, 569 S.E.2d 162 (2002). Additionally,
in Magnatech Industrial Services v. York, No.
14-0386, 2015 WL 249263 (W.Va. Jan. 15, 2015)(memorandum
decision), this Court reversed an order that similarly
reduced an impairment rating to comply with West Virginia
Code of State Rules § 85-20. The Board of Review found
Dr. Mukkamala's assessment of 7% impairment to be the
most credible and reliable. Therefore, it determined the
claim administrator's award of 7% permanent partial
disability should have been affirmed.
review, we agree with the Board of Review. West Virginia Code
of State Rules § 85-20-64.5 provides that "an
injured worker who can otherwise show entitlement to a
permanent partial disability award for carpal tunnel syndrome
shall be eligible to receive a permanent partial disability
award of 0%-6% in each affected hand." Dr. Guberman
assessed 9% impairment for the right hand. However, he failed
to reduce the impairment to comply with the West Virginia
Code of State Rules. Dr. Guberman's failure to reduce the
impairment he assessed to comply with the West Virginia Code
of State Rules may not be remedied by the Office of Judges.
Because Dr. Guberman's assessment of impairment did not
comply with West Virginia Code of State Rules § 85-20,
it was not reliable. Therefore, the Office of Judges erred
when it relied on Dr. Guberman's opinion to award
permanent partial disability benefits.
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 ...