                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

WEST VIRGINIA OFFICE OF                                                        FILED
INSURANCE COMMISSIONER,                                                    November 2, 2018
IN ITS CAPACITY AS ADMINISTRATOR                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
OF THE SELF-INSURED EMPLOYER                                                     OF WEST VIRGINIA

SECURITY RISK POOL,
Commissioner Below, Petitioner

vs.)   No. 18-0394 (BOR Appeal No. 2052299)
                   (Claim No. 2013026140)

NANCY J. COST,
Claimant Below, Respondent

And

RG STEEL WHEELING, LLC,
Employer Below, Respondent

                              MEMORANDUM DECISION
        The West Virginia Office of Insurance Commissioner, in its capacity as administrator of
the self-insured employer security risk pool, by Anna L. Faulkner, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Nancy J. Cost, by M.
Jane Glauser, her attorney, filed a timely response.

       The issue on appeal is whether Ms. Cost has met the 50% whole-body medical
impairment threshold for consideration of a permanent total disability award. On January 13,
2017, the claims administrator denied the application for permanent total disability benefits. The
Workers’ Compensation Office of Judges reversed the claims administrator’s decision in an
Order dated October 17, 2017. The Office of Judges determined that Ms. Cost meets the whole-
body medical impairment threshold and remanded the claim for further consideration on the
merits as to whether Ms. Cost is permanently and totally disabled. This appeal arises from the
Board of Review’s Final Order dated March 28, 2018, in which the Board affirmed the Order of
the Office of Judges. The Court has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature for consideration.

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       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. Cost was employed with Wheeling Pittsburgh Steel for approximately twenty-four
years as a mill wright special worker. On October 3, 2001, she injured her back in a compensable
injury claim. The claim was ruled compensable on October 19, 2001, for a lumbar sprain. On
March 1, 2002, the Commission authorized a decompression of L4-L5 with an L5-S1
foraminotomy. By Order dated April 18, 2003, Ms. Cost was granted a 22% permanent partial
disability award. On July 29, 2004, Ms. Cost underwent a second surgery which consisted of a
L3-L4 decompression, L3-L4 foraminotomy with pedicle screw fixation. On April 29, 2005,
secondary conditions of the lumbar area and spondylolisthesis were added as compensable
components of the claim. On April 28, 2011, depression and anxiety were added as compensable
components. By claims administrator Order dated February 25, 2011, mechanical complication
hardware failure and failed fusion were added to the claim. The claims administrator granted an
additional 4% permanent partial disability on October 19, 2011.

        An independent medical evaluation was performed by Robert Gerbo, M.D., on
September 26, 2011, in which he noted Ms. Cost’s numerous medical issues. In his report, Dr.
Gerbo diagnosed Ms. Cost with lumbar degenerative disc disease, lumbar radiculopathy, failed
fusion, acquired spondylolisthesis, lumbar sprain/strain, hardware failure, and anxiety. Dr. Gerbo
found 28% impairment due to work-related injuries.

       On August 19, 2012, Ms. Cost filed an application for permanent total disability with
information concerning her prior claims and awards, as well as her award of Social Security
Disability benefits, which was granted on July 1, 2004. During her course of treatment, Ms. Cost
has undergone seven authorized lumbar surgeries. She also has five fused levels in her lumbar
spine.

       A psychiatric independent medical evaluation report, dated September 15, 2012, was
submitted by Bridgette Balasko, M.D., and Kari Law, M.D. Attached to the report was a
psychological evaluation performed by Maria Mora, Ph.D. Following evaluation, it was
determined that Ms. Cost has 13% psychiatric whole-person impairment. Ms. Cost was
diagnosed with major depressive disorder and anxiety disorder. Ms. Cost was granted a 13%
psychiatric permanent partial disability award on July 3, 2012.


       Ms. Cost filed a claim for occupational lung disease on March 25, 2013. On February 18,
2014, the Occupational Pneumoconiosis Board issued a report finding that Ms. Cost has 15%
pulmonary function impairment. The report noted that Ms. Cost has a history of dust hazard
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exposure for approximately twenty-five years. The OP Board concluded that there was sufficient
evidence to justify a diagnosis of occupational pneumoconiosis.

       An independent medical evaluation report by Sushil Sethi, M.D., dated September 18,
2014, was submitted for consideration. Dr. Sethi determined that Ms. Cost has exhausted all of
the available medical treatment and retired. Dr. Sethi found that Ms. Cost has a combined 26%
whole-person impairment for the cervical and lumbar spine. He noted that Ms. Cost has
undergone five procedures and found her neurological system to be normal. Using the American
Medical Association’s Guides to the Evaluation of Permanent Impairment, (4th ed 1993), Dr.
Sethi opined that Ms. Cost has 35% total whole-person impairment in her claim. It was his
opinion that she is not permanently and totally disabled. Dr. Sethi found that Ms. Cost is capable
of remunerative employment and is able to work.

        On August 8, 2016, an Initial Recommendations report was submitted from the
Permanent Total Disability Review Board. The Review Board found Dr. Sethi’s report to be the
most current and accurate assessment of Ms. Cost’s whole body medical impairment for all of
her occupational injuries. The Review Board found Dr. Balasko’s report to be the most accurate
assessment of her psychiatric impairment. The Review Board also accepted the findings and
recommendations of the OP Board. The Review Board utilized the AMA Guides and found that
Ms. Cost sustained a total of 46% whole-person impairment from all of her occupational injuries
and diseases. Accordingly, the Review Board concluded that Ms. Cost did not suffer from at
least 50% impairment on a whole-body basis and failed to meet the required level of whole-body
medical impairment for further consideration for an award of permanent total disability.

       On January 9, 2017, the Permanent Total Disability Review Board issued its Final
Recommendation after considering the objections and responses from Ms. Cost. The Review
Board again found that Ms. Cost failed to meet the required level of whole-body medical
impairment for further consideration for a permanent total disability award. The Review Board
recommended that the application for permanent total disability be denied.

        On January 13, 2017, the claims administrator denied the application for permanent total
disability. The claims administrator stated that it denied the application for not meeting the
threshold for pursuing permanent total disability benefits based on the Final Recommendation
from the Review Board dated January 1, 2017. Ms. Cost protested the claims administrator’s
decision.

        A permanent total disability evaluation report by Bruce Guberman, M.D., dated May 4,
2017, concluded that Ms. Cost’s low back symptoms did not improve with conservative
treatment and multiple extensive surgical procedures. Ms. Cost was found to have no motion at
all in her lumbar spine due to the fusion of the entire lumbar spine. She also had a fusion of her
thoracic spine. Using the Range of Motion model of the AMA Guides, Dr. Guberman found 41%
impairment of the whole-person for the lumbar spine and 10% impairment of the whole-person
for the cervical spine. Dr. Guberman combined the values for a total of 47% impairment of the

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whole-person for the spine injuries. Dr. Guberman then combined the spine impairment with the
15% whole-person impairment for occupational pneumoconiosis, the 13% impairment of the
whole-person for psychiatric impairment, and 1% for the left hand injury. Dr. Guberman found
that Ms. Cost has a total of 61% impairment of the whole-person. Dr. Guberman opined that Ms.
Cost is permanently and totally disabled as a direct result of her compensable injuries.

        The Office of Judges reversed the claims administrator’s January 13, 2017, Order. The
Office of Judges found that Ms. Cost meets the 50% threshold and remanded the claim for
further determination on the issue of permanent total disability. The Office of Judges found that
Dr. Sethi, in his reports, failed to cite categories of West Virginia Code of State Rules § 85-20
(2006) for the spine. The Office of Judges determined that Dr. Guberman’s opinion, as the most
recent report, was the most persuasive report of impairment. Based on his report, the Office of
Judges concluded that Ms. Cost has at least 51% whole person impairment and met the whole-
body medical impairment threshold for further consideration of her application for permanent
total disability benefits.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on March 28, 2018. After review, we agree with the reasoning and
conclusions of the Office of Judges as affirmed by 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: November 2, 2018

CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.




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