                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             February 10, 2016
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
DUANE EUGENE GUMP,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-1087 (BOR Appeal No. 2049472)
                   (Claim No. 990028870)

CONSOLIDATION COAL COMPANY/EASTERN REGION
SHOEMAKER,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Duane Eugene Gump, by M. Jane Glauser, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Consolidation Coal
Company/Eastern Region Shoemaker, by Edward M. George III, its attorney, filed a timely
response.

        This appeal arises from the Board of Review’s Final Order dated September 24, 2014, in
which the Board affirmed a May 6, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s March 14, 2013, decision to
not grant a permanent partial disability award for the 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.

       Mr. Gump, a coal miner for Consolidation Coal Company/Eastern Region Shoemaker,
was injured on September 4, 1998, when his head crashed into a low hanging pipeline in an
underground mine. On October 10, 2000, an independent medical evaluation from John Griffith,
M.D., was completed. Dr. Griffith found Mr. Gump to be at his maximum degree of medical
improvement. Dr. Griffith recommended 6% whole person impairment for the right shoulder and
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5% whole person impairment for the low back. This equated to a total of 11% whole person
impairment. Based upon the report of Dr. Griffith the claims administrator granted Mr. Gump an
11% permanent partial disability award on November 7, 2000. On March 30, 2002, a report from
Larry DeGarmeaux, D.C., was completed. Dr. DeGarmeaux found that Mr. Gump suffered from
15% whole person impairment for the lower back. Based upon the report of Dr. DeGarmeaux the
claims administrator granted Mr. Gump a further permanent partial disability award on April 18,
2002.

        On June 15, 2006, an independent medical evaluation of Mr. Gump was issued by Bruce
Guberman, M.D. Dr. Guberman’s found Mr. Gump to be at his maximum degree of medical
improvement. Dr. Guberman recommended 8% whole person impairment for the right shoulder,
12% whole person impairment for the cervical spine, and 7% whole person impairment for the
thoracic spine. On September 22, 2011, Mr. Gump reported to Joseph E. Grady II, M.D., for an
independent medical evaluation. Dr. Grady noted that he had suffered a motor vehicle accident
with a whiplash-type injury in 2000, which was approximately two years after the date of injury.
Dr. Grady opined that Mr. Gump had reached his maximum degree of medical improvement. Dr.
Grady found no ratable criteria from Table 75 of the American Medical Association’s Guides to
the Evaluation of Permanent Impairment (4th ed. 1993) for the cervical spine. However, he did
note 11% whole person impairment for range of motion defects. Dr. Grady placed Mr. Gump in
Category II of West Virginia Code of State Rules § 85-20-E (2006). This placement adjusted the
whole person impairment down to 8%. In the shoulder, Dr. Grady found 1% whole person
impartment for shoulder flexion. However, because Mr. Gump had a more severe injury to the
right shoulder in which he had subsequent surgery, Dr. Grady apportioned all the range of
motion deficit to the more significant injury.

        On September 28, 2011, the claims administrator found that Mr. Gump had been found to
be fully compensated by the 15% permanent partial disability award for the neck and 6%
permanent partial disability award for the right shoulder. On January 30, 2013, the Office of
Judges affirmed the claims administrator’s decision that Mr. Gump was fully compensated for
his cervical spine and right shoulder. However, the Office of Judges found that the thoracic spine
was part of the compensable conditions and ordered Mr. Gump to be referred for an evaluation
for the thoracic spine only.

        On March 8, 2013, Dr. Grady issued an independent medical evaluation of Mr. Gump’s
thoracic spine. Dr. Grady indicated that he had previously examined Mr. Gump for his right
shoulder, low back, and cervical spine. According to Dr. Grady, the thoracic region did not show
any increased redness, warmth, swelling, tenderness, spasm, or scoliosis. Dr. Grady also
remarked that the neurological examination was normal. Dr. Grady’s assessment was resolved
thoracic sprain. Dr. Grady opined that Mr. Gump was at his maximum degree of medical
improvement and suffered no ratable thoracic impairment. Based upon Dr. Grady’s report, the
claims administrator entered a decision granting no award for permanent partial disability for the
thoracic spine on March 14, 2013. Mr. Gump protested.

        The Office of Judges determined that Mr. Gump was not entitled to any permanent partial
disability for thoracic spine. The Office of Judges determined that the only issue in litigation was
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the amount of permanent partial disability related to Mr. Gump’s thoracic spine. The Office of
Judges identified two reports of record that commented on thoracic impairment. Dr. Guberman
opined on June 15, 2006, that Mr. Gump suffered from 7% whole person impairment related to
the thoracic spine and Dr. Grady found no impairment on March 8, 2013. The Office of Judges
adopted the report of Dr. Grady because it determined that he provided the best measurement of
Mr. Gump’s current impairment. Dr. Guberman’s report was performed seven years prior to that
of Dr. Grady’s report. The Office of Judges noted that Dr. Grady did not find any muscle
tenderness, tenderness to palpitation, scoliosis, or any other attributes that would qualify for
ratable impairment. The Office of Judges found that Dr. Grady found full range of motion, that
the spine was curved well, that Mr. Gump did not have any recent treatment in his thoracic spine,
and that his neurologic exam was normal. The Board of Review adopted the findings of the
Office of Judges and affirmed its decision.

       We agree with the consistent decisions of the Office of Judges and Board of Review. Dr.
Grady’s report is consistent with the evidence of record and accurately reflects Mr. Gump’s
whole person impairment. Section 2.3 General Comments on Evaluation of the American
Medical Association’s Guides at 9 states that “The physician should assess the current state of
the impairment according to the criteria in the Guides.” Dr. Guberman made his assessment of
Mr. Gump several years prior to the assessment of Dr. Grady. Because Dr. Grady’s report more
closely reflects Mr. Gump’s current state of impairment, the Office of Judges and Board of
Review were not in error for adopting his 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: February 10, 2016

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

DISSENTING:
Justice Margaret L. Workman




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