                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                    FILED
FOREST A. ADKINS,                                                                   May 5, 2017
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

vs.)   No. 16-0517 (BOR Appeal No. 2050921)
                   (Claim No. 2012020814)


SWVA, INC.,

Employer/Claimant Below, Respondent



                             MEMORANDUM DECISION
      Petitioner Forest A. Adkins, by Edwin H. Pancake, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. SWVA, Inc., by Steven K.
Wellman, its attorney, filed a timely response.

        The issue on appeal is the appropriate amount of permanent partial disability related to
the compensable injury. On September 16, 2014, the claims administrator granted a 1%
permanent partial disability award. The Office of Judges affirmed the decision in its November
4, 2015, Order. The Order was affirmed by the Board of Review on May 3, 2016. 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. Adkins, a laborer for SWVA, Inc., injured his left shoulder on June 30, 2011, when
he was using a sledgehammer during the course of his employment. The claim was rejected and,
on appeal, the Office of Judges held the claim compensable for a left shoulder injury in February
of 2013. On August 28, 2014, Marsha Bailey, M.D., issued an independent medical evaluation
report based upon an independent medical examination of Mr. Adkins. She found that Mr.
Adkins had made a remarkable recovery and had regained full range of motion in the left
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shoulder. Dr. Bailey found that Mr. Adkins had a pre-existing diagnosis of impingement
syndrome, which was not uncommon in a man of his age. He returned to work without
restrictions just seven months after the surgery. Dr. Bailey found that Mr. Adkins had reached
maximum medical improvement. For the left shoulder flexion deficit, Dr. Bailey assessed 1%
upper extremity impairment from Figure 38 of the American Medical Association’s Guides to
the Evaluation of Permanent Impairment (4th ed. 1993). She found no other ratable impairment
and found that he suffered from 1% whole person impairment. Based upon Dr. Bailey’s
recommendation, the claims administrator granted Mr. Adkins a 1% permanent partial disability
award on September 16, 2014.

       By report dated January 20, 2015, Bruce Guberman, M.D., after completing an
independent medical evaluation, found Mr. Adkins to be at maximum medical improvement. For
range of motion deficit in flexion and extension of the left shoulder, he recommended 3% upper
extremity impairment from Figure 38 of the American Medical Association’s Guides. For
abduction and adduction, he recommended 2% upper extremity impairment from Figure 41 of
the American Medical Association’s Guides. For internal and external rotation of the left
shoulder, he recommended 2% upper extremity impairment from Figure 44 of the American
Medical Association’s Guides. He combined all the findings to reach 7% combined upper
extremity impairment, which was 4% whole man impairment.

        On August 3, 2015, Dr. Bailey provided a supplemental examination report. Dr. Bailey
noted that she was aware of Mr. Adkins’s previous right shoulder injury, which occurred on
February 18, 2007. Both she and Dr. Guberman evaluated Mr. Adkins regarding the prior injury.
Dr. Bailey pointed out that Dr. Guberman found 1% whole person impairment in the left
shoulder for range of motion deficit in 2008, but he did not subtract or consider it in his 2015
report. On December 15, 2008, Dr. Guberman examined Mr. Adkins for the purposes of an
independent medical evaluation of his right shoulder. While determining impairment, Dr.
Guberman used the uninjured left shoulder to assess the level of impairment of the right
shoulder. Dr. Guberman found pre-existing degenerative changes in the left shoulder. He
deducted 1% impairment from the right shoulder based upon the degenerative changes in the left
shoulder. Dr. Bailey concluded that Dr. Guberman’s January 20, 2015, report was inconsistent
and inaccurate because it did not take into account his previous independent medical evaluation
performed in 2008. Dr. Bailey also found that Dr. Gubeman’s report was not as useful because it
deviated from her assessment as well as the assessment made by Jack Steel, M.D. Dr. Steel, Mr.
Adkins’s treating orthopedic physician, found 180 degrees of flexion, which was similar to her
finding of 173 degrees. This was far different than Dr. Guberman’s 150 degree finding. Dr.
Guberman only found 60 degrees of external rotation whereas Dr. Bailey and Dr. Steel found 80
degrees. Also, Dr. Guberman found 60 degrees of internal rotation, while Drs. Bailey and Steel
found 80 degrees or more.

       On November 4, 2015, the Office of Judges determined that the evidence of record
demonstrated Mr. Adkins is entitled to a 1% permanent partial disability award related to his
compensable left shoulder injury. The Office of Judges found that Dr. Guberman’s range of
motion measurements were not as reliable as the consistent findings of Dr. Bailey and Dr. Steel.
The Office of Judges reasoned that even if Dr. Guberman’s measurements were accurate, they
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can only be explained by the progression of pre-existing degenerative conditions. Further, the
Office of Judges noted that Dr. Guberman did not explain why he did not deduct the 1% whole
person impairment he found existed in the left shoulder in 2008 from his 2015 final impairment
rating. Because of these two issues the Office of Judges found that Dr. Bailey’s report was a
more reliable indicator of whole person impairment. The Board of Review adopted the findings
of the Office of Judges and affirmed its Order on May 3, 2016.

       After review, we agree with the consistent decisions of the Office of Judges and Board of
Review. It was proper for the Office of Judges and Board of Review to adopt the report of Dr.
Bailey because her report did not contain the inconsistencies that Dr. Guberman’s contained. Dr.
Guberman did not explain why he did not deduct the previously found 1% whole person
impairment he assessed in 2008. Further his range of motion measurements were not consistent
with the other physicians.

        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: May 5, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Elizabeth D. Walker

DISSENTING:
Justice Menis E. Ketchum




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