Appeal No. 2051899) (Claim No. 2015009311)
Virginia Adams, by Otis R. Mann Jr., her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Silver Creek Charleston B, LLC, by Lisa
Warner Hunter, its attorney, filed a timely response.
issue on appeal is permanent partial disability. The claims
administrator granted a 10% permanent partial disability
award on November 24, 2015. The Office of Judges affirmed the
decision in its March 16, 2017, Order. The Order was affirmed
by the Board of Review on August 15, 2017. 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
Adams, a laundry attendant, was injured in the course of her
employment on August 9, 2014, when she fell on a waxed floor
and struck her left shoulder on a sink. Ms. Adams had a prior
work-related injury in 1987. A treatment note by Larry Casto,
M.D., indicates she was injured when she slipped and fell on
a waxed floor, landing on her head, neck, and shoulder. She
complained of pain in her neck and shoulder. In an April 19,
1988, independent medical evaluation, Robert Clubb, M.D.,
assessed 3% permanent partial disability for injury. Ms.
Adams was eventually awarded a 5% permanent partial
disability award for her cervical and dorsal spine by the
Office of Judges on November 30, 1994.
instant claim, Marsha Lee Bailey, M.D., performed an
independent medical evaluation on June 16, 2015, and found
that Ms. Adams's description of the injury is consistent
with her MRI findings. Dr. Bailey found it was reasonable to
assume Ms. Adams sustained a left shoulder contusion,
shoulder sprain/strain, and rotator cuff injury. She had not
yet reached maximum medical improvement and required further
treatment. The claim was held compensable for left rotator
cuff tear, left shoulder sprain, and left shoulder contusion
on July 2, 2015.
November 5, 2015, Dr. Bailey performed a second independent
medical evaluation in which she recommended shoulder surgery;
however, Ms. Adams refused due to family obligations.
Therefore, Dr. Bailey found she had reached maximum medical
improvement. Using the American Medical Association's
Guides to the Evaluation of Permanent Impairment
(4th ed. 1993), she assessed 18% upper extremity impairment
which converted to 11% whole person impairment. Dr. Bailey
noted that Ms. Adams's left hand grip strength was pain
restricted. She also had mild range of motion abnormalities
in her right shoulder equaling 1%. Dr. Bailey therefore
apportioned the left shoulder impairment for the preexisting
1% impairment in both shoulders. In support, she noted that
Ms. Adams's x-ray and MRI showed normal, age related,
mild osteoarthritis. Dr. Bailey's total assessment was
10% impairment. The claims administrator granted a 10%
permanent partial disability award on November 24, 2015.
August 16, 2016, Bruce Guberman, M.D., performed an
independent medical evaluation. He used the American Medical
Association's Guides to the Evaluation of Permanent
Impairment to find 20% upper extremity impairment which
equated to 12% whole person impairment. Dr. Guberman noted
that Ms. Adams received a 5% permanent partial disability
award for a 1987 injury to her neck and lower back. He made
no apportionment for the preexisting injury.
Office of Judges affirmed the claims administrator's
grant of a 10% permanent partial disability award on March
16, 2017. It found that the range of motion measurements
assessed by Dr. Bailey and Dr. Guberman were similar. The
biggest difference was Dr. Bailey's apportionment of 1%
impairment to a preexisting condition given that the
uninvolved right shoulder had 1% impairment. Dr. Guberman, on
the other hand, noted the prior injury and the x-ray which
showed arthritis, but did not apportion for the preexisting
condition. The Office of Judges noted that Ms. Adams had a
prior injury in 1987 which caused bilateral shoulder pain.
This was determined to be consistent with Dr. Bailey's
observed range of motion abnormalities. Dr. Bailey also took
notice of the x-ray evidence of preexisting shoulder
arthritis. Her report was therefore found to be more
consistent with the evidentiary record. The Board of Review
adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on August 15, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Dr.
Bailey apportioned for a preexisting arthritic condition in
the bilateral shoulders. This apportionment is consistent
with the evidence of record which shows by x-ray that Ms.
Adams had preexisting arthritis in both shoulders.
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 ...