                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 May 14, 2013

                                                                            RORY L. PERRY II, CLERK

ROSETTA L. DALTON,                                                        SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0976	 (BOR Appeal No. 2045465)
                   (Claim No. 2005004063)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CRUMP FAMILY RESTAURANTS, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Rosetta L. Dalton, by William B. Gerwig III, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Crump Family Restaurants, Inc.,
by Gregory W. Sproles, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated June 8, 2011, in which
the Board affirmed a January 4, 2011, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges affirmed the claims administrator’s July 28, 2009, decision
granting the claimant a 2% permanent partial disability award for scars related to her ACL
surgery. 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.
        Ms. Dalton received an injury to her right knee on July 27, 2004, when she fell while
working at a restaurant owned by Crump Family Restaurants, Inc. Her claims for sprain of right
knee and unspecified internal derangement were held compensable by the claims administrator
and she underwent ACL reconstruction to repair the injury to her right knee. The claims
administrator then granted her 2% permanent partial disability award relating to the scars from
her ACL surgery. Ms. Dalton protested, requesting an additional 4% permanent partial disability
for loss of range of motion, and 3% permanent partial disability for muscle atrophy, leading to
this appeal.

        The Office of Judges found that Ms. Dalton failed to meet her burden of proof
demonstrating that she was entitled to greater than a 2% permanent partial disability award for
her injury. The Office of Judges found that her additional claim was based on evidence which
lacked credibility and persuasiveness. The Office of Judges found that the report of Dr.
Guberman, which recommended an additional 4% impairment for lost range of motion and 3%
impairment for muscle atrophy in the right leg, was unreliable because the evidence did not meet
the standards set out in the American Medical Association, Guides to the Evaluation of
Permanent Impairment (4th ed. 1993). Dr. Guberman combined methods for evaluating range of
motion and muscle atrophy even though the American Medical Association, Guides, direct an
examiner to base his finding on only one method. Dr. Guberman did not sufficiently justify his
evaluation methods in order to persuade the Office of Judges to accept his recommendation.

       The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on June 8, 2011.

        We agree with the findings and reasoning of the Office of Judges. Since the Office of
Judges found Ms. Dalton’s evidence supporting an additional permanent partial disability award
for loss of range of motion and muscle atrophy to be unpersuasive, it was not clearly wrong to
limit Ms. Dalton’s permanent partial disability award to 2% for scars related to her ACL
reconstruction. The Board of Review was correct to affirm the Order of the Office of Judges.

        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
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: May 14, 2013

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

DISSENTING:
Justice Menis E. Ketchum
