TRIPLE S. CORPORATION, Employer Below, Petitioner
DENNIS DEBOARD, Claimant Below, Respondent
Appeal No. 2052178 (Claim No. 2014007702)
Triple S. Corporation, by Bradley A. Crouse, its attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Dennis Deboard, by Reginald D.
Henry, its attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
Mr. Deboard is entitled to for his compensable injury. The
claims administrator granted a 20% permanent partial
disability award on September 28, 2016. The Office of Judges
reversed the decision in its September 1, 2017, Order and
granted Mr. Deboard a 27% award. The Order was affirmed by
the Board of Review on December 22, 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
Deboard, a foreman, was injured in the course of his
employment on March 25, 2014, when he slipped and fell on
ice. The claim was initially held compensable for a back
contusion. A lumbar MRI taken on May 16, 2014, showed a
protrusion of the L4-5 disc, marginal osteophytes, mild facet
hypertrophy, bulging of L3-4 and L5-S1, and mild encroachment
of the lateral recesses.
Scott, M.D., performed an independent medical evaluation of
Mr. Deboard on July 21, 2014. Dr. Scott noted that Mr.
Deboard reported constant back pain and burning in his right
leg. Dr. Scott found that the accident brought preexisting
degenerative changes to light. Mr. Deboard's complaints
included preexisting conditions as well as compensable
conditions. Dr. Scott opined that the MRI findings are
unrelated to the compensable injury, as the findings were
degenerative. Given the large amount of degeneration seen on
the MRI, it is obvious that the degenerative changes did not
occur between the compensable injury and the MRI two months
later. Dr. Scott found Mr. Deboard had reached maximum
medical improvement and that any further care would be for
the noncompensable degenerative changes. He assessed 6%
impairment for the lumbar spine. The claims administrator
granted Mr. Deboard a 6% permanent partial disability award
on October 2, 2014, based on Dr. Scott's evaluation.
claims administrator added displacement of intervertebral
disc, thoracic/lumbosacral neuritis/radiculitis, and
lumbosacral sprain to the claim on September 30, 2015,
following an Order of the Office of Judges. Thereafter,
Joseph Grady, M.D., performed an independent medical
evaluation on August 23, 2016, to assess all of Mr.
Deboard's compensable conditions. Dr. Grady found that
Mr. Deboard had reached maximum medical improvement. Using
Table 75 of the American Medical Association's Guides
to the Evaluation of Permanent Impairment (4th ed.
1993), he assessed 12% impairment. Dr. Grady found invalid
range of motion for lumbar extension and flexion and found a
total of 12% impairment for range of motion loss. There was
no impairment for the thoracic spine. Dr. Grady placed Mr.
Deboard in Lumbar Category IV of West Virginia Code of State
Rules § 85-20-C (2006) and assessed a total of 20% whole
person impairment. Based upon his evaluation, the claims
administrator granted a 20% permanent partial disability
award on September 28, 2016.
Walker, M.D., performed an independent medical evaluation on
January 20, 2017, in which he assessed 12% impairment using
the American Medical Association's Guides. He
found 9% impairment for lumbar range of motion loss and 4%
for neurological impairment for a total of 23% whole person
impairment. Dr. Walker placed Mr. Deboard in Category IV of
West Virginia Code of State Rules § 85-20-C. He also
assessed 5% impairment for the thoracic spine for a total
recommendation of 27% whole person impairment.
March 21, 2017, Michael Kominsky, D.C., performed an
independent medical evaluation in which he assessed 12%
impairment from Table 75 of the American Medical
Association's Guides, 9% for loss of range of
motion, and 5% for neurological loss. He combined these for
24% impairment. He placed Mr. Deboard in Category IV of West
Virginia Code of State Rules § 85-20-C and recommended
23% impairment. He apportioned 2% to degenerative changes.
For the thoracic spine, he assessed 3% impairment, placed Mr.
Deboard in Category II of West Virginia Code of State Rules
§ 85-20-D (2006), and recommended 5% impairment. His
total recommendation was 25% impairment for the lumbar and
Office of Judges reversed the claims administrator's
grant of a 20% permanent partial disability award and granted
Mr. Deboard a 27% award on September 1, 2017. The Office of
Judges concluded that thoracic neuritis/radiculitis was found
to be compensable in this claim. There were three evaluators
of record who assessed Mr. Deboard's impairment. All
three evaluated the thoracic spine and Drs. Walker and
Kominsky found 5% impairment for the thoracic spine. Dr.
Kominsky was the only physician of record to apportion the
impairment for prior degenerative changes. Dr. Grady was the
only physician who did not find neurological deficits. It was
determined that Dr. Walker followed the American Medical
Association's Guides and that his evaluation was
the most consistent concerning the compensable conditions.
His recommendation of 27% impairment was therefore found to
be the most valid assessment of Mr. Deboard's impairment.
The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on December 22, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Dr.
Walker's report was reliable and followed the applicable
American Medical Association's Guides and West
Virginia Code of State Rules § 85-20 (2006). It cannot
be said that the Office of Judges or Board of Review
committed an error in relying on his evaluation.
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 Margaret L. Workman Justice
Robin J. Davis Justice Menis E. Ketchum Justice Allen H.