                             STATE OF WEST VIRGINIA

                                                                                  FILED
                          SUPREME COURT OF APPEALS                             March 20, 2014
                                                                           RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
CHARLES E. PENNINGTON,                                                       OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0862	 (BOR Appeal No. 2046701)
                   (Claim Nos. 2003040078 & 2007002573)

WEST VIRGINIA OFFICE OF
THE INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

ARMSTRONG TELEPHONE COMPANY,
Employer Below, Respondent

and

ARMSTRONG TELE COMPANY/ NORTHERN DIVISION,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Charles E. Pennington, by George Zivkovich, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Armstrong Telephone
Company, by Bradley A. Crouser, its attorney, filed a timely response. The West Virginia Office
of the Insurance Commissioner, by Mark A. Bramble, its attorney, also 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 November 18, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 24,
2010, decision granting no permanent partial disability award in relation to Mr. Pennington’s
January 21, 2007, injury. The Office of Judges also affirmed the claims administrator’s
September 16, 2009, decision granting no additional permanent partial disability award in
relation to Mr. Pennington’s February 19, 2003, injury. The Court has carefully reviewed the
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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. Pennington worked as a technician for Armstrong Telephone Company. On February
19, 2003, Mr. Pennington injured his lumbar spine while lifting a generator and carrying it up a
hill. Mr. Pennington’s injury was held compensable, and the claims administrator granted him an
8% permanent partial disability award. On January 21, 2007, Mr. Pennington again injured his
lumbar spine while loading a generator. The claims administrator held the claim compensable
but specifically denied coverage for the diagnoses of degenerative disc disease and chronic pain.
Following this decision, James Dauphin, M.D., performed an independent medical evaluation of
Mr. Pennington in relation to his February 19, 2003, injury. Dr. Dauphin found that Mr.
Pennington had reached the maximum degree of medical improvement. Dr. Dauphin then found
that Mr. Pennington had 10% whole person impairment based on the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) and Lumbar
Category III of West Virginia Code of State Rules § 85-20-C (2006).

        Dr. Dauphin then issued a clarifying letter, stating that Mr. Pennington’s current
treatment needs were not related to his February 19, 2003, injury but to his January 21, 2007,
injury. Dr. Dauphin found that Mr. Pennington only had 8% whole person impairment of the
lumbar spine in relation to his February 19, 2003, injury. On September 16, 2009, the claims
administrator granted Mr. Pennington no additional permanent partial disability award for his
February 19, 2003, injury. The claims administrator found that he had been fully compensated by
his prior 8% permanent partial disability award. Bruce A. Guberman, M.D., then performed an
independent medical evaluation of Mr. Pennington relating to the January 21, 2007, injury. Dr.
Guberman found that Mr. Pennington had reached the maximum degree of medical improvement
with respect to his lumbar injury and found that he had 5% whole person impairment for his
lumbar spine under the American Medical Association’s Guides and Lumbar Category II of
West Virginia Code of State Rules § 85-20-C. On September 24, 2010, the claims administrator
granted Mr. Pennington no permanent partial disability award for his January 21, 2007, injury.
The claims administrator stated that Mr. Pennington had been fully compensated by his prior 8%
permanent partial disability award. On November 18, 2011, the Office of Judges affirmed the
claims administrator’s September 16, 2009, and September 24, 2010, decisions. The Board of
Review then affirmed the Order of the Office of Judges on June 25, 2012, leading Mr.
Pennington to appeal.

       The Office of Judges concluded that Mr. Pennington remained fully compensated by the
prior 8% permanent partial disability award for the lumbar spine. The Office of Judges found
that Mr. Pennington had been previously granted an 8% permanent partial disability award for
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his February 19, 2003, lumbar spine injury. The Office of Judges found that there were no
independent medical evaluations in the record that recommended more than an 8% permanent
partial disability award relating to Mr. Pennington’s lumbar spine. The Office of Judges found
that Dr. Dauphin’s initial independent medical evaluation recommended a higher award. But the
Office of Judges found that Dr. Dauphin corrected his report and determined that Mr. Pennington
only had 8% impairment relating to his 2003 injury. The Office of Judges found that Dr.
Guberman recommended a 5% impairment rating relating to Mr. Pennington’s January 21, 2007,
injury. The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Pennington has not demonstrated that he is entitled to an additional permanent
partial disability award in relation to his February 19, 2003, lumbar injury or any permanent
partial disability award in relation to his January 21, 2007, injury. Mr. Pennington has suffered
two relevant compensable injuries to his lumbar spine. He previously received an 8% permanent
partial disability award in relation to his February 19, 2003, injury. Although Mr. Pennington
received a second lumbar injury on January 21, 2007, he has not presented any evidence showing
that he has incurred any greater whole person impairment which would entitle him to an
additional permanent partial disability award. The evidence in the record shows that Mr.
Pennington has been fully compensated by the prior 8% permanent partial disability award.

        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 20, 2014

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

DISSENTING:
Justice Menis E. Ketchum




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