                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 27, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
HUNTINGTON ALLOYS CORPORATION,                                                OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 14-0580	 (BOR Appeal No. 2049123)
                   (Claim No. 2011029247)

STEVEN ROWE,

Claimant Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Huntington Alloys Corporation, by Jillian Moore, its attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review.

       This appeal arises from the Board of Review’s Final Order dated May 23, 2014, in which
the Board affirmed a January 9, 2014, Order of the Workers’ Compensation Office of Judges. In
its Order, the Office of Judges reversed the claims administrator’s January 3, 2012, decision
granting Mr. Rowe a 2% permanent partial disability award, and instead granted Mr. Rowe an
8% permanent partial disability award. 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. Rowe sustained compensable sprains of both shoulders and upper arms on February
18, 2011, while manipulating a piece of tubing. Diagnostic imaging performed on March 22,
2011, revealed mild supraspinatus tendinopathy in the left shoulder and degenerative changes in
the superolateral humeral head of the right shoulder. Additionally, Mr. Rowe’s left shoulder was
treated with an arthroscopic acromioplasty, bursectomy, debridement of a partial rotator cuff
tear, and an anterior capsular release.


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        On December 8, 2011, Marsha Lee Bailey, M.D., performed an independent medical
examination for the purpose of determining the amount of whole person impairment arising from
the compensable injury. She opined that Mr. Rowe sustained 2% whole person impairment as a
result of range of motion abnormalities in the right shoulder and also opined that he sustained 2%
whole person impairment as a result of range of motion abnormalities in the left shoulder, for a
total of 4% whole person impairment. However, she apportioned 2% whole person impairment
to pre-existing bilateral degenerative joint disease and osteoarthritis arising from the normal
aging process. On January 3, 2012, the claims administrator granted Mr. Rowe a 2% permanent
partial disability award based upon Dr. Bailey’s evaluation.

       Bruce Guberman, M.D., performed a second independent medical evaluation on July 10,
2012. He opined that Mr. Rowe sustained 4% whole person impairment as a result of range of
motion abnormalities in the right shoulder and also opined that he sustained 6% whole person
impairment as a result of range of motion abnormalities in the left shoulder. Dr. Guberman
opined that the entirety of Mr. Rowe’s left shoulder impairment is attributable to the
compensable injury, as there is no history of prior symptomology in the left shoulder and
diagnostic imaging did not reveal degenerative changes in the left shoulder. However, he opined
that 2% of the right shoulder impairment should be attributed to pre-existing conditions because
Mr. Rowe sustained a prior right shoulder injury with symptoms continuing intermittently, and
because diagnostic imaging revealed the presence of degenerative changes. Therefore, Dr.
Guberman opined that Mr. Rowe sustained a total of 8% whole person impairment as a result of
the compensable injury.

       In its Order reversing the January 3, 2012, claims administrator’s decision, the Office of
Judges held that the preponderance of the evidence demonstrates that Mr. Rowe incurred 8%
whole person impairment as a result of the February 18, 2011, injury. The Board of Review
affirmed the Office of Judges’ Order in its decision dated May 23, 2014. On appeal, Huntington
Alloys Corporation asserts that the evidence of record demonstrates that Mr. Rowe sustained no
more than 2% whole person impairment as a result of the compensable injury.

       The Office of Judges found that although Dr. Guberman concurred with Dr. Bailey’s
impairment recommendation regarding the right shoulder, he provided a reasonable basis for his
disagreement with her decision to apportion a portion of Mr. Rowe’s left shoulder impairment
for pre-existing conditions. Specifically, the Office of Judges found that Dr. Guberman’s
recommendation was based upon his finding that the left shoulder showed no signs of
degenerative changes. The Office of Judges further noted that Dr. Guberman based his
recommendation upon a finding that Mr. Rowe’s left shoulder range of motion has evidently
decreased following the cessation of physical therapy.

       In its capacity as the trier of fact, the Office of Judges concluded that the evidence of
record demonstrates that Mr. Rowe sustained 8% whole person impairment as a result of the
compensable injury. The Board of Review affirmed the reasoning and conclusions of the Office
of Judges. We, in turn, affirm the reasoning and conclusions of the Board of Review.


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        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:


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

DISSENTING:
Justice Brent D. Benjamin




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