Appeal No. 2053073) (Claim No. 2016016622)
Deborah Priet, by Counsel Lawrence E. Sherman Jr., appeals
the decision of the West Virginia Workers' Compensation
Board of Review ("Board of Review"). Noorinder,
LLC, by Counsel Alyssa A. Sloan, filed a timely response.
issue on appeal is permanent partial disability. The claims
administrator granted no permanent partial disability award
on December 12, 2016. The Office of Judges affirmed the
decision in its May 31, 2018, Order. The Order was affirmed
by the Board of Review on October 19, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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
Priet, a shelter counselor, was injured in the course of her
employment on December 27, 2015, while lifting a box of
coffee. The Employees' and Physicians' Report of
Injury lists the diagnoses as fracture at the base of the
right fifth metacarpal and possible extensor tendon rupture.
A December 31, 2015, treatment note by Kenneth Guida, PA-C,
with Orthopedic Excellence, indicates he diagnosed right
fifth metacarpal fracture and placed Ms. Priet in a splint.
The claim was held compensable for fracture of the right
fifth metacarpal on January 25, 2016.
MRI taken on January 26, 2016, showed low grade
tendinopathy/strain in the extensor carpi ulnaris tendon and
a possible triangular fibrocartilage complex tear. There was
no evidence of an acute fracture line. A treatment note by
Mr. Guida the following day indicates he found that Ms. Priet
had no fracture. She did sustain a strain of the triangular
fibrocartilage complex and tendinopathy strain in the
extensor carpi ulnaris tendon. Ms. Priet was to undergo
occupational therapy. An EMG was performed on June 1, 2016,
and revealed evidence of mild right ulnar neuropathy, likely
at the elbows.
notes from Orthopedic Excellence indicate Joseph Cincinnati,
D.O., recommended surgery on July 6, 2016, due to paresthesia
and weakness. He noted that the EMG showed ulnar neuropathy.
On July 8, 2016, Mr. Guida diagnosed extensor carpi ulnaris
tendinopathy, triangular fibrocartilage complex injury, and
ulnar neuropathy. Mr. Guida opined that Ms. Priet was
prematurely discharged from occupational therapy, which
caused a regression in her symptoms. On August 9, 2016, Mr.
Guida opined that Ms. Priet's symptoms had worsened and
that she had discoloration and coolness in her right arm. He
diagnosed ulnar neuropathy and likely chronic regional pain
syndrome. Mr. Guida disagreed with a report by Marsha Bailey,
M.D., in which she opined that Ms. Priet's symptoms were
unrelated to the compensable injury.
July 21, 2016, record review, Dr. Bailey stated that she
reviewed medical records as well as surveillance video of Ms.
Priet. In the footage, Ms. Priet was seen eating, driving,
opening doors, and putting keys in her pocket, all with her
right hand. Dr. Bailey opined that the compensable fifth
metacarpal fracture should have healed within three to four
weeks. The mechanism of injury was not consistent with ulnar
neuropathy at the elbow, and Ms. Priet reported no nerve
symptoms until three months after the injury occurred. Dr.
Bailey found nonoccupational risk factors for elbow ulnar
neuropathy in the form of obesity and multiple sclerosis. She
also found some symptom magnification.
Savagno, M.D., performed an independent medical evaluation on
September 7, 2016, in which he noted that Ms. Priet had
discoloration in her right hand and that it was cold to the
touch. He noted that the claim was held compensable for fifth
metacarpal fracture but that Ms. Priet did not actually
sustain a fracture. He opined that she may have sprained her
triangular fibrocartilage complex. Ms. Priet also showed
signs of complex regional pain syndrome. Dr. Savagno found no
signs of ulnar neuropathy on examination and stated that the
condition was not compatible with the mechanism of injury. He
opined that Ms. Priet had not reached maximum medical
improvement and that she needed further evaluation. His
diagnosis was right wrist sprain and resulting chronic
regional pain syndrome.
Martin M.D., performed an independent medical evaluation on
November 8, 2016, in which he opined that Ms. Priet never had
ulnar neuropathy but did sustain a triangular fibrocartilage
complex strain. She had reached maximum medical improvement.
Dr. Martin noted that surveillance video showed Ms. Priet
using her right hand normally. Using the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993), Dr. Martin found
0% impairment. Based on Dr. Martin's report, the claims
administrator granted no permanent partial disability award
on December 12, 2016.
Priet was treated by Shannon Tieman, CRNP, on May 23, 2017.
Ms. Tieman evaluated Ms. Priet for noncompensable conditions.
It was noted that she had multiple sclerosis that caused
immobility issues. She also had right leg numbness and
chronic nerve pain.
October 19, 2017, independent medical evaluation, Alex
Ambroz, M.D., noted that multiple examiners found that Ms.
Priet had weakness, numbness, and temperature changes in her
right hand and wrist. Dr. Ambroz found decreased strength,
range of motion, sensation, coloration and temperature in the
right wrist/hand. He felt that Ms. Priet met the criteria for
chronic regional pain syndrome. He also opined that she had a
significant impairment as a result of the compensable injury.
Using the American Medical Association's Guides,
Dr. Ambroz assessed 27% permanent partial disability.
Office of Judges affirmed the claims administrator's
decision granting no permanent partial disability award in
its May 31, 2018, Order. The Office of Judges found that Dr.
Ambroz's report was unreliable. He used Tables 11 and 12
from the American Medical Association's Guides
for impairment due to pain or sensory deficits and power and
mobility deficits resulting from peripheral nerve disorders.
However, right cubital tunnel syndrome, an ulnar nerve
condition, was found to be noncompensable by the Office of
Judges on October 5, 2017. Dr. Ambroz also used Table 13
which concerns impairment due to unilateral sensory or motor
deficits of spinal nerves. The Office of Judges found that
the claim was held compensable for fractured fifth
metacarpal. Tables 11, 12, and 13 have no relation to the
compensable injury. As Dr. Ambroz assigned a large amount of
impairment from these tables, his report was found to be
unreliable. Dr. Martin's report was found to be reliable.
He determined that Ms. Priet sustained no impairment as a
result of the compensable injury. The Board of Review adopted
the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on October 19, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Dr.
Ambroz reported impairment that has no relation to the
compensable right fifth ...