                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 2, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JOSHUA G. LILLY,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-1124 (BOR Appeal No. 2048327)
                   (Claim No. 2010120555)

ALPHA ENGINEERING SERVICES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Joshua G. Lilly, by Reginald D. Henry and Rodney A. Skeens, his attorneys,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. Alpha
Engineering Services, Inc., by H. Dill Battle III, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated October 7, 2013, in
which the Board reversed an April 10, 2013, Order of the Workers’ Compensation Office of
Judges and reinstated the claims administrator’s May 23, 2011, decision granting Mr. Lilly a 4%
permanent partial disability award for his right knee. In its Order, the Office of Judges granted
Mr. Lilly an additional 8% permanent partial disability award for his lumbar spine for a total
award of 12%. 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 that the Board of Review’s decision is based on a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement for Rule 21(d) of the Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

       Mr. Lilly worked for Alpha Engineering Services, Inc. On January 14, 2010, Mr. Lilly
was involved in a head on vehicle collision which resulted in multiple injuries including to his
lower back and right knee. Following the accident, an MRI was taken of Mr. Lilly’s right knee
which showed a delicate tear of the medial meniscus. The claims administrator held the claim
compensable for several conditions, including a sprain of the lumbar region and a tear of the
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lateral cartilage or meniscus of the knee. The claims administrator also authorized a
reconstruction of the anterior cruciate ligament and arthroscopic debridement of the medial
meniscus of the right knee. After the surgery, Joseph E. Grady, M.D., evaluated Mr. Lilly. He
determined that Mr. Lilly had no ratable impairment of the lumbar spine and no impairment of
the right knee. Dr. Grady then performed a second evaluation and considering Mr. Lilly’s right
knee surgery, determined that he had 4% whole person impairment under the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993). On May 23,
2011, the claims administrator granted Mr. Lilly a 4% permanent partial disability award based
on Dr. Grady’s opinion. Robert B. Walker, M.D., then evaluated Mr. Lilly and determined that
he had ratable loss of range of motion in his lumbar spine. Dr. Walker found that Mr. Lilly had
8% whole person impairment for loss of range of motion and rigidity in his lumbar spine based
on the American Medical Association’s Guides and Lumbar Category II of West Virginia Code
of State Rules § 85-20-C (2006). Dr. Walker also determined that Mr. Lilly had 4% impairment
for his right knee. Dr. Walker combined these two impairment ratings and found that Mr. Lilly
had 12% whole person impairment related to his compensable injury. Bruce A. Guberman, M.D.,
also evaluated Mr. Lilly and determined that he had 4% impairment related to his knee surgery.
However, Dr. Guberman found that Mr. Lilly had no loss of range of motion in his lumbar spine.
Dr. Guberman also found no evidence of rigidity or radiculopathy of the lumbar spine and placed
Mr. Lilly in Lumbar Category I of West Virginia Code of State Rules § 85-20-C for a 0%
impairment rating. Dr. Guberman believed that Dr. Walker’s range of motion measurements may
have been invalid because they were taken prior to Mr. Lilly reaching his maximum degree of
medical improvement. On April 10, 2013, the Office of Judges reversed the claims
administrator’s decision and granted Mr. Lilly a 12% permanent partial disability award. The
Board of Review reversed the Order of the Office of Judges on October 7, 2013, and reinstated
the claims administrator’s decision, leading Mr. Lilly to appeal.

        The Office of Judges concluded that Mr. Lilly was entitled to a 12% permanent partial
disability award for his compensable injury. The Office of Judges determined that Mr. Lilly was
entitled to an 8% permanent partial disability award for his lumbar spine in addition to the 4%
award for the right knee that was granted in the claims administrator’s decision. In determining
Mr. Lilly’s award, the Office of Judges relied on the evaluation of Dr. Walker. The Office of
Judges specifically found that Dr. Walker’s placement of Mr. Lilly’s lumbar injury into Lumbar
Category II of West Virginia Code of State Rules § 85-20-C was persuasive because it reflected
that Mr. Lilly had an actual injury which resulted in a loss of range of motion. The Office of
Judges also considered the opinions of Dr. Guberman and Dr. Grady. However, it did not rely on
their evaluations because the Office of Judges found that Mr. Lilly suffered loss of range of
motion for which Dr. Guberman’s and Dr. Grady’s reports did not account. The Office of Judges
determined that all three evaluators agreed that Mr. Lilly had 4% impairment for his right knee
under the American Medical Association’s Guides.

       The Board of Review concluded that the Office of Judges’ Order was clearly wrong
based on the evidence in the record, and it reinstated the claims administrator’s decision to grant
Mr. Lilly a 4% permanent partial disability award. The Board of Review based this decision on
the evaluation of Dr. Guberman. The Board of Review determined that Dr. Walker’s report was
not credible because he was the only examiner who found that Mr. Lilly had impairment of the
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lumbar spine and his range of motion testing was not consistent with the remaining evaluations
in the record.

         The decision of the Board of Review is based on a material mischaracterization of the
reliability of Dr. Walker’s evaluation. Mr. Lilly has presented sufficiently reliable evidence that
he is entitled to an 8% permanent partial disability award for his lumbar spine in addition to the
4% award granted by the claims administrator for his right knee. Dr. Walker’s evaluation shows
that Mr. Lilly had 8% impairment for his lumbar spine. Dr. Walker thoroughly evaluated Mr.
Lilly. He properly applied the American Medical Association’s Guides and West Virginia Code
of State Rules § 85-20-C. The Office of Judges determined that Dr. Walker’s evaluation was the
most reliable assessment of Mr. Lilly’s whole person impairment, and it was within the Office of
Judges’ discretion to rely on his opinion in determining Mr. Lilly’s permanent partial disability
award. The Board of Review did not provide sufficient justification for reversing the Order of the
Office of Judges under West Virginia Code § 23-5-12(b) (2006).

       For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and remanded with instructions to reinstate the April 10,
2013, Order of the Office of Judges.

                                                                         Reversed and Remanded.


ISSUED: December 2, 2014

CONCURRED IN BY:
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin




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