                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              October 7, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
KANAWHA VALLEY OPERATIONS,                                                    OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0663 (BOR Appeal No. 2048388)
                   (Claim No. 2012034925)

JEFFREY MILLER,
Claimant Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Kanawha Valley Operations, by Charles R. Bailey and Dawn E. George, its
attorneys, appeals the decision of the West Virginia Workers’ Compensation Board of Review.
Jeffrey Miller, by William B. Gerwig III, his attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated May 29, 2013, in which
the Board affirmed an April 12, 2013, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges reversed the claims administrator’s April 17, 2012, decision
granting Mr. Miller a 3% permanent partial disability award for his left shoulder injury. The
Office of Judges granted Mr. Miller an additional 4% award for a total of a 7% 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.

       Mr. Miller worked as a crew leader for Kanawha Valley Operations. On November 18,
2011, he injured his left knee and left shoulder when he jumped out of the way of a moving
vehicle. The claims administrator held his injury compensable, and on April 17, 2012, it granted
Mr. Miller a 3% permanent partial disability award for his left shoulder injury. The claims
administrator based its decision on an independent medical evaluation of Paul Bachwitt, M.D.
Following this decision, Bruce A. Guberman, M.D., evaluated Mr. Miller. He diagnosed Mr.
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Miller with chronic post-traumatic strain of the left shoulder which had persistent range of
motion abnormalities and weakness. Dr. Guberman determined that Mr. Miller had 7% whole
person impairment related to his left shoulder under the American Medical Association’s Guides
to the Evaluation of Permanent Impairment (4th ed. 1993). Dr. Guberman found that Mr.
Miller’s range of motion deficits had increased since Dr. Bachwitt’s evaluation. On April 12,
2013, the Office of Judges reversed the claims administrator’s decision. The Board of Review
affirmed the Order of the Office of Judges on May 29, 2013, leading Kanawha Valley
Operations to appeal.

        The Office of Judges concluded that Mr. Miller was entitled to an additional 4%
permanent partial disability award for his left shoulder above the 3% award granted by the
claims administrator. The Office of Judges determined that Mr. Miller had 7% whole person
impairment for his left shoulder due to the November 18, 2011, injury. It based this
determination on the independent medical evaluation of Dr. Guberman, which it found was the
only evidence submitted into the record. The Office of Judges found that the evaluation of Dr.
Bachwitt, which was referenced in the claims administrator’s decision, was not submitted into
the record and therefore, was not considered in reaching its conclusion.

        The Board of Review adopted the findings of the Office of Judges and affirmed its Order.
The Board of Review also denied Kanawha Valley Operations’ motion to remand the claim for
consideration of Dr. Bachwitt’s evaluation. The Board of Review concluded that Kanawha
Valley Operations did not show good cause for remanding the claim. It determined that the
Office of Judges gave Kanawha Valley Operations ten months to submit evidence into the record
but instead, it did not participate in the litigation.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. The only evidence of Mr. Miller’s permanent disability which was submitted into the
record is Dr. Guberman’s evaluation. Dr. Guberman evaluated Mr. Miller under the American
Medical Association’s Guides and his report is sufficiently reliable. The Office of Judges was
justified in basing its conclusion on Dr. Guberman’s opinion. There is no evidence in the record
undermining the credibility of Dr. Guberman’s report. The Board of Review was also justified in
denying Kanawha Valley Operations’ motion to remand the case for additional evidence.

        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: October 7, 2014



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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




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