                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
ROBERT S. HURLEY JR.,                                                          November 14, 2013
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 12-0034 (BOR Appeal No. 2046060)
                   (Claim No. 2006046205)

DAVID STANLEY CONSULTANTS, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Robert S. Hurley Jr., by Charlene Foose Geyer, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. David Stanley
Consultants, LLC, by Steven K. Wellman, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated December 14, 2011, in
which the Board reversed a June 16, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s June 29, 2009,
Order granting a 23% permanent partial disability award for bunions and neuralgia of both feet.
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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21 (d) of the Revised Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

       Mr. Hurley was employed by David Stanley Consultants, LLC as a fire boss requiring
him to walk between twelve to sixteen miles per day wearing special footwear. Mr. Hurley filed
a workers’ compensation claim that was held compensable for injuries to both of his feet. On
June 29, 2009, the claims administrator granted Mr. Hurley a 23% permanent partial disability
award. The Office of Judges reversed and granted Mr. Hurley a 28% permanent partial disability
award based upon the report of Dr. Anbu K. Nada.


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        The Board of Review reversed the Office of Judges’s Order and reinstated the claims
administrator’s Order granting Mr. Hurley a 23% permanent partial disability award. Mr. Hurley
argues that the evidence does not support a finding that the use of the gait method was
inappropriate and the Office of Judges Order is not clearly wrong or against the preponderance
of the evidence. David Stanley Consultants, LLC maintains that Dr. Guberman and Dr. Jin found
that the gait derangement was an improper rating method and that when a person walks with a
deranged gait using a cane, then the person would only qualify for one gait derangement.

       On May 21, 2009, Dr. Guberman examined Mr. Hurley and found that he was at
maximum medical improvement and recommended a 23% permanent partial disability award.
On June 3, 2009, Dr. James Daupin, an orthopedic surgeon, reviewed the report of Dr.
Guberman and agreed with Dr. Guberman’s opinion. On August 12, 2009, Dr. Anbu K. Nada, an
orthopedic surgeon, examined Mr. Hurley and recommended a 28% permanent partial disability
award. Dr. Nadar used the gait derangement method from the American Medical Association’s
Guides to the Evaluation of Permanent Impairment, (4th Edition, 1993) and rated each lower
extremity with 15% impairment with a combined whole person impairment of 28%. On
September 1, 2010, Dr. Jin reviewed the medical reports and agreed with Dr. Guberman. She
disagreed with Dr. Nadar stating that gait derangement was not a specific method for rating Mr.
Hurley. According to the American Medical Association’s Guides, 3.2 at page 75, “If both
extremities are impaired, the impairment of each should be evaluated and expressed in terms of
the whole person, and the two percents should be combined.”

        The Board of Review found Dr. Nadar’s interpretations of the American Medical
Association’s Guides, were not reliable or credible. We disagree. The Office of Judges found
that the evidence does not support a finding that the use of the gate derangement method was
improper. The Office of Judges found that the opinion of Dr. Nadar provided better support for
Mr. Hurley’s position. The Office of Judges noted that Dr. Nadar rated Mr. Hurley under a
different method than Dr. Guberman but the method was consistent with the American Medical
Association’s Guides. The Office of Judges further noted that Mr. Hurley had surgery on both of
his feet, both of which affect his gait. We agree with the Office of Judges that Dr. Nadar’s rating
of Mr. Hurley’s permanent partial disability award was consistent with the American Medical
Association’s Guides.

        For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the Board of
Review’s Order of December 14, 2011, is reversed, and the case is remanded with instructions to
reinstate the Office of Judges’s June 16, 2011, Order granting Mr. Hurley a 28% permanent
partial disability award.

                                                                        Reversed and Remanded.

ISSUED: November 14, 2013



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CONCURRED IN BY:
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Brent D. Benjamin




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