                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GARY CRABTREE,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0027 (BOR Appeal No. 2047421)
                   (Claim No. 2010100395)

HOMER LAUGHLIN CHINA COMPANY,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Gary Crabtree, by Christopher J. Wallace and Raymond A. Hinerman, his
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Homer Laughlin China Company, by Lucinda L. Fluharty, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated December 18, 2012, in
which the Board affirmed a July 6, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s January 10, 2011, decision
granting Mr. Crabtree a 3% permanent partial disability award for his psychiatric disability. The
Court has carefully reviewed the records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.

       This 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
Procedure.

        Mr. Crabtree worked as a glass processing supervisor for Homer Laughlin China
Company. On July 16, 2009, Mr. Crabtree was feeling unwell due to heat exposure and fell down
a flight of stairs injuring his neck, lower back, and head. Mr. Crabtree also began to develop
some psychological symptoms in connection to the injury including feelings of uselessness and
concentration problems. Edward Miltenberger, M.D., and Susanne Choby, M.D., then performed
an independent medical evaluation of Mr. Crabtree and found that he met the criteria for major
depressive disorder, single episode, and personality change due to traumatic head injury. Dr.
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Miltenberger and Dr. Choby found that Mr. Crabtree was treating his psychological problems
with medication, including Zoloft and Ambien, and with periodic psychotherapy sessions. Dr.
Miltenberger and Dr. Choby determined that Mr. Crabtree had a global assessment of
functioning (GAF) score of 65 which fell within a 0%-5% whole person impairment range under
West Virginia Code of State Rules § 85-20 exhibit B (2006). They found that Mr. Crabtree had
5% whole person impairment. However, they determined that 3% impairment was related to his
compensable injury and the remainder should be apportioned to non-compensable factors. On
January 10, 2011, the claims administrator granted Mr. Crabtree a 3% permanent partial
disability award based on Dr. Miltenberger and Dr. Choby’s opinion. Anil C. Nalluri, M.D., then
evaluated Mr. Crabtree and determined that he had a GAF score of 45, indicating that he had
serious psychological symptoms and impairment in social and occupational functioning. Dr.
Nalluri found that Mr. Crabtree had 15% whole person impairment related to his personality
change and 12% impairment related to his major depressive disorder. He combined these ratings
and determined that Mr. Crabtree had 25% whole person impairment for his psychological
disability. Stuart S. Burstein, M.D., also evaluated Mr. Crabtree and determined that he had a
GAF score of 68. He noted that a GAF score of 70 was in the normal range, indicating that Mr.
Crabtree had mild depressive symptoms. Dr. Burstein found that Mr. Crabtree had 3% whole
person psychological impairment attributable to his compensable injury. On July 6, 2012, the
Office of Judges affirmed the claims administrator’s decision. The Board of Review affirmed the
Order of the Office of Judges on December 18, 2012, leading Mr. Crabtree to appeal.

       The Office of Judges concluded that Mr. Crabtree had 3% whole person psychiatric
impairment related to his compensable injury of July 16, 2009, and it affirmed the claims
administrator’s grant of a 3% permanent partial disability award. The Office of Judges based this
determination on the opinions of Dr. Burstein, Dr. Miltenberger, and Dr. Choby. The Office of
Judges found that these reports were in substantial agreement and had similar GAF scores. The
Office of Judges found that these scores were more consistent with the evidence in the record
than the GAF score provided by Dr. Nalluri. The Office of Judges determined that Dr. Nalluri’s
assessment could not be reconciled with the evidence of Mr. Crabtree’s symptoms. The Board of
Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Crabtree has not demonstrated that he is entitled to a greater than 3% permanent
partial disability award for the psychiatric impairment related to his compensable injury. The
opinions of Dr. Burstein, Dr. Miltenberger, and Dr. Choby are consistent with the evidence in the
record, including Mr. Crabtree’s subjective complaints and his history of treatment. The Office
of Judges was within its discretion in relying on their impairment recommendations. Dr.
Nalluri’s opinion is not supported by the evidence in the record. The record does not reflect the
kind of serious psychological symptoms, impediments, or treatment needs which would justify a
25% permanent partial disability award under West Virginia Code of State Rules § 85-20 exhibit
B.

        For the 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

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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 affirmed.

                                                                                    Affirmed.

ISSUED: June 10, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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