                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                March 27, 2013

                                                                            RORY L. PERRY II, CLERK

OPAL L. COTTRILL,                                                         SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0971 (BOR Appeal No. 2045354)
                   (Claim No. 2006037696)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

UNITED HOSPITAL CENTER, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Opal L. Cottrill, by Robert Stultz, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. United Hospital Center, Inc., by Gary
Nickerson and James Heslep, its attorneys, 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 November 15, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 3, 2009,
decision granting Ms. Cottrill a 5% permanent partial disability award for her lower back injury.
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.

                                                1
        Ms. Cottrill was working for United Hospital Center, Inc. when she suffered a lumbar
sprain/strain, and the claim was held compensable for such. Ms. Cottrill also suffers from a
preexisting degenerative disease in her back. During December of 2008 she underwent surgery
that was found unrelated to the compensable injury. On September 3, 2009, the claims
administrator granted Ms. Cottrill a 5% permanent partial disability award based on the report by
Dr. Charles Werntz III.

        The Office of Judges affirmed the claims administrator’s Order, and held that Ms. Cottrill
was entitled to only a 5% permanent partial disability award attributable to the compensable
injury. Ms. Cottrill disputes this finding and asserts that she is entitled to a 20% permanent
partial disability award as found by Dr. Snead. United Hospital Center maintains that the 5%
permanent partial disability award is correct. Dr. Charles Werntz III found that Ms. Cottrill
suffered from 5% impairment due to the compensable injury, attributing her other impairment to
the preexisting degenerative disease. Dr. Snead found that Ms. Cottrill had 20% impairment. Dr.
Jin found that Ms. Cottrill had no impairment attributable to the compensable injury.

        In affirming the claims administrator’s Order, the Office of Judges found that Dr. Snead
did not properly evaluate Ms. Cottrill’s impairment related to the compensable injury. It noted
that Dr. Snead stated that if the surgery was deemed related to the work injury, then she suffered
from 20% impairment. The Office of Judges concluded that the surgery was not related to the
compensable injury, and that Dr. Charles Werntz III was correct in finding that Ms. Cottrill was
entitled to a 5% permanent partial disability award. The Board of Review reached the same
reasoned conclusions in its decision of June 8, 2011. We agree with the reasoning and
conclusions of the Board of Review.

        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: March 27, 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

                                                2
