                             STATE OF WEST VIRGINIA
                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
LOUIS HEMSHRODT,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0936 (BOR Appeal No. 2046759)
                   (Claim No. 2008042933)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

WEIRTON STEEL CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Louis Hemshrodt, by James Carey, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of Insurance
Commissioner, by Jon Snyder, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 12, 2012, in which
the Board affirmed a January 3, 2012, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges affirmed the claims administrator’s November 18, 2010, decision
which granted Mr. Hemshrodt an additional 1.6% impairment for occupational hearing loss for a
total award of 16.2% permanent partial disability. 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.
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         Mr. Hemshrodt, a steel worker, sustained occupational hearing loss in the course of his
employment. He was first evaluated by Mary Rago, M.D., on February 21, 2008. In her
evaluation, she found that he suffered from 22% permanent impairment. She asserted that the test
reliability was good, and the testing was conducted by a certified audiologist. She diagnosed Mr.
Hemshrodt with bilateral high frequency sensorineural hearing loss consistent with noise
exposure. Mr. Hemshrodt was also evaluated by Stephen Wetmore, M.D. In his independent
medical evaluation on June 27, 2008, Dr. Wetmore found that Mr. Hemshrodt suffered from
14.6% permanent impairment. He also indicated that the test reliability was good, and the testing
was performed by a certified audiologist. Based upon these reports, the claims administrator
awarded Mr. Hemshrodt 14.6% permanent partial disability for occupational hearing loss.

        Mr. Hemshrodt was evaluated by Charles Abraham, M.D., on October 23, 2009. Dr.
Abraham concluded that he had sustained 28.13% whole person impairment due to hearing loss
resulting from exposure to hazardous levels of industrial noise. He indicated that the testing was
good and acceptable. However, on the testing sheet there was no indication that the audiologist
was certified or licensed. He also failed to perform a bone conduction test. Dr. Wetmore
evaluated Mr. Hemshrodt again in March of 2010. He noted that Dr. Abraham’s report was
inaccurate, because it was based on the work of an uncertified tester and showed audiometric
findings dissimilar to most of the preceding testing. Dr. Wetmore determined that based on that
day’s testing, Mr. Hemshrodt suffered from 11.18% whole person impairment.

        On July 9, 2010, the Office of Judges remanded the claim for another independent
medical evaluation. It determined that Dr. Abraham’s report was unreliable, because he failed to
perform a bone conduction test, it was not apparent that a certified audiologist conducted the
testing, and the testing sheet did not indicate reliability. Another independent medical evaluation
was performed on September 10, 2010, by Joseph Touma, M.D. He determined that Mr.
Hemshrodt suffered from 16.2% whole person impairment. He indicated in his report that he
adjusted the percentage to account for hearing loss that was not attributable to industrial noise
exposure. He also indicated that the test reliability was good, and that the audiologist was
certified. Based upon this report, the claims administrator granted Mr. Hemshrodt an additional
1.6% impairment for a total award of 16.2% permanent partial disability.

        The Office of Judges affirmed the decision of the claims administrator in its January 3,
2012, Order. Mr. Hemshrodt argued before the Office of Judges that he was entitled to a total
permanent partial disability award of 28.13% as established by the report of Dr. Abraham. The
Office of Judges concluded that Dr. Abraham’s report was previously adjudicated to be
unreliable for the purposes of determining permanent impairment. Mr. Hemshrodt also argued
that Dr. Touma’s report should not have been adjusted to compensate for non-occupational
hearing loss. The Office of Judges determined that West Virginia Code § 23-4-9b (2003),
provides that pre-existing impairments shall not be taken into consideration when determining
the amount of permanent impairment a claimant has suffered. The Office of Judges held that Dr.
Touma’s report was reliable and persuasive. It determined that a preponderance of the evidence
in this case shows that Mr. Hemshrodt suffered 16.2% permanent impairment as a result of his
occupational hearing loss.

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       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 12, 2012, decision. This Court agrees with the reasoning
and conclusions of the Board of Review. Dr. Abraham’s report was previously found to be
unreliable, and the report of Dr. Touma is credible and persuasive. The decision of the Board of
Review is supported by the evidentiary record and is therefore affirmed.

        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 10, 2014

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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