                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TOMI A. VANNOY,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0837	 (BOR Appeal No. 2046905)
                   (Claim No. 2009075707)

PRIMECARE MEDICAL OF WEST VIRGINIA, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Tomi A. Vannoy, by John Blair, her attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. PrimeCare Medical of West Virginia, 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 25, 2012, in which
the Board affirmed a January 24, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s September 10, 2010,
decision granting Ms. Vannoy a 5% permanent partial disability award for the injury to her
thoracic spine. 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. Vannoy injured her thoracic spine on December 30, 2008, while attempting to move
a thirty pound box. On May 25, 2010, the claims administrator held Ms. Vannoy’s claim
compensable for sprain/strain of the thoracic region and injury to other site of the trunk. Ms.
Vannoy has undergone three independent medical evaluations to determine the amount of
permanent impairment resulting from her compensable injuries. On August 25, 2010, Bruce
Guberman, M.D., evaluated Ms. Vannoy and recommended a 5% permanent partial disability
award. The claims administrator granted Ms. Vannoy a 5% permanent partial disability award
                                                1
based on Dr. Guberman’s impairment recommendation. On October 1, 2010, Victor Poletajev,
D.C., evaluated Ms. Vannoy and recommended an 8% permanent partial disability award. On
September 23, 2011, Prasadarao Mukkamala, M.D., evaluated Ms. Vannoy and also
recommended a 5% permanent partial disability award.

        In its Order affirming the September 10, 2010, claims administrator’s decision, the Office
of Judges held that the evidence of record demonstrates that Ms. Vannoy has 5% permanent
partial disability as a result of her thoracic spine injury. Ms. Vannoy disputes this finding and
asserts, per the opinion of Dr. Poletajev, that she is entitled to an 8% permanent partial disability
award for the injuries to her thoracic spine.

        The Office of Judges found that Dr. Poletajev’s report cannot be considered a reliable
indicator of the impairment resulting from Ms. Vannoy’s December 30, 2008, injury because he
included an impairment rating for pre-existing herniated thoracic discs, which are evidenced on
an MRI performed nearly one year before Ms. Vannoy’s date of injury. The Office of Judges
noted that this cannot be reconciled with West Virginia Code § 23-4-9b (2003), which requires
that pre-existing impairment be excluded when determining a claimant’s whole person
impairment resulting from a compensable injury. The Office of Judges found that the reports of
Dr. Guberman and Dr. Mukkamala are identical in that neither included the pre-existing disc
herniation in his impairment rating and both recommended a 5% permanent partial disability
award, and therefore found their reports to be reliable. The Board of Review reached the same
reasoned conclusions in its decision of June 25, 2012. 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 18, 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




                                                 2
