                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 4, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
SHARON G. LEGG,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0634 (BOR Appeal No. 2049012)
                   (Claim No. 2009086434)

GREENBRIER COUNTY SCHOOLS,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Sharon G. Legg, by Reginald D. Henry, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Greenbrier County Schools, by
Matthew L. Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated May 28, 2014, in which
the Board affirmed a November 26, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 31, 2012,
decision to grant a 0% permanent partial disability award. 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. Legg, a bus driver for Greenbrier County Schools, was driving her bus route on
March 20, 2009, when a student kicked her in the side of the face. On April 2, 2009, Ms. Legg
filled out her report of injury, and the claims administrator held her claim compensable for a
sprain of the neck on April 30, 2009.

      On July 19, 2012, Ms. Legg reported to Bruce Guberman, M.D., for an independent
medical evaluation. At the time of examination, Ms. Legg complained of almost constant neck
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pain radiating into her right upper extremity. Ms. Legg reported that she did not miss any work
as a result of her compensable injury and still worked on a full-time basis as a bus driver. Dr.
Guberman conducted a range of motion study of Ms. Legg’s cervical spine but found that the
testing was invalid due to pain and sub-maximal effort. Dr. Guberman also examined Ms. Legg’s
right shoulder, elbow, wrist and hand. He saw no evidence of muscle weakness. He diagnosed
Ms. Legg as suffering from acute and chronic cervical spine strain. Dr. Guberman placed Ms.
Legg in Cervical Category II-B of Table 75 of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993), which yielded 4% whole person
impairment. Dr. Guberman placed Ms. Legg into Cervical Category I of West Virginia Code of
State Rules § 85-20-E (2006). He commented that Ms. Legg was placed into that category
because her range of motion testing was invalid, no spasm was noted, and her history was
inconsistent with radicular symptoms. As a result, he recommended a 0% whole-person
impairment rating for her. Based upon the report of Dr. Guberman, the claims administrator
granted a 0% permanent partial disability award on July 31, 2012. Ms. Legg protested.

       Ms. Legg also had an independent medical evaluation by D. H. Fleschner, D.C.C.R.P. Dr.
Fleschner placed Ms. Legg into Categories II C and F of Table 75 of the American Medical
Association’s Guides. Dr. Fleschner commented that Ms. Legg is qualified for both placement in
C and F, because she had an established cervical injury with pain rigidity associated with
moderate to severe degenerative changes and a herniated disk thus yielding 7% impairment. He
then took the 7% for range of motion deficits and combined it with the Table 75 impairment to
yield 14% total whole person impairment. Dr. Fleschner then adjusted Ms. Legg’s impairment
downward to 8% to fit within Category II of West Virginia Code of State Rules § 85-20-E.

       Greenbrier County Schools introduced records from September 2, 2002, through January
7, 2008, that show Kendall Wilson, D.O., treated Ms. Legg for problems related to her neck,
shoulder, and back.

        On August 27, 2013, Ms. Legg reported to Bill Hennessey, M.D., for an independent
medical evaluation. Ms. Legg complained of bilateral neck pain. Dr. Hennessy performed a
physical examination, commenting that Ms. Legg had full range of motion of her cervical spine
in all directions. He further commented that she exhibited normal and symmetric muscle tone
and bulk in her posterior cervical paraspinal musculature. Dr. Hennessey placed Ms. Legg into
Category II-A of Table 75 of the American Medical Association’s Guides, for 0% impairment.
He also noted that there was no impairment for range of motion deficits. He then placed Ms.
Legg into Cervical Category I of West Virginia Code of State Rules § 85-20-E, which equated to
0% whole person impairment.

        The Office of Judges determined that Ms. Legg was not entitled to any more than a 0%
permanent partial disability award. The Office of Judges noted that Ms. Legg had a long-
standing history of neck problems and degenerative changes of the cervical spine not related to
the compensable injury. The Office of Judges also noted that Ms. Legg had a lapse in treatment
in this claim of at least two years, which according to the Office of Judges suggested that her
injury on March 20, 2009, was not particularly severe. The Office of Judges noted that its
findings were further supported by the fact that she missed no work as a result of her
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compensable injury. Accordingly, the Office of Judges determined that the evidence of record
supported Dr. Guberman’s and Dr. Hennessey’s opinions as opposed to Dr. Fleschner’s opinion.
The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the consistent decisions of the Office of Judges and Board of Review. Dr.
Fleschner found 8% whole person impairment, but he was the only physician to find any
impairment. Ms. Legg has had previous back injuries as indicated by her chiropractic records
that span from 2002 until 2008, which was prior to the compensable injury in this claim. Ms.
Legg also did not miss any work and had a long delay in her treatment, which would suggest that
her injury on March 20, 2009, was not particularly severe. As a result, it is more likely than not
that the reports of Dr. Guberman and Dr. Hennessey are more accurate and reliable in
comparison to Dr. Fleschner’s report.

        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 4, 2015

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




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