                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
MARY ANN ROBERTS,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0867 (BOR Appeal No. 2047992)
                   (Claim No. 2010130461)

MARY ROBERTS,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Mary Ann Roberts, by M. Jane Glauser, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Mary Roberts, by Lucinda
Fluharty, her attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 30, 2013, in which
the Board affirmed a November 29, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s October 4, 2011,
decision which granted Ms. Roberts a 5% permanent partial disability award and granted Ms.
Roberts no 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.

         Ms. Roberts, a home health care provider, was injured on November 17, 2009, while
assisting a patient in the shower. Her claim was held compensable for lumbar and sacrum strains.
Ms. Roberts previously injured her lower back on March 1, 2002. In a September 2, 2004,
independent medical evaluation for the March 1, 2002, back injury, Jack Koay, M.D., placed Ms.
Roberts in Lumbar Category III of West Virginia Code of State Rules § 85-20-C (2006), and

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assessed 13% whole person impairment. Ms. Roberts was then granted a 13% permanent partial
disability award.

        In the instant claim, three independent medical evaluations were performed in order to
determine the amount of permanent impairment Ms. Roberts sustained as a result of her
November 17, 2009, injury. Sushil Sethi, M.D., performed an evaluation on September 26, 2011.
He noted that Ms. Roberts had a history of sacroiliac pain and had received injections since
2007. He placed her in Lumbar Category II of West Virginia Code of State Rules § 85-20-C and
assessed 5% whole person impairment. He made no note of a previous permanent partial
disability award for the lumbar spine and did not apportion for the previous award. Based upon
Dr. Sethi’s evaluation, the claims administrator awarded Ms. Roberts a 5% permanent partial
disability award on October 4, 2011.

        A second independent medical evaluation was performed by Bruce Guberman, M.D., on
January 5, 2012. Dr. Guberman noted that Ms. Roberts originally injured her lower back on
March 1, 2002, and underwent two surgeries. Following her surgeries, she did well and had no
significant limitations. Following her November 17, 2009, injury she had increased pain and
decreased range of motion. Dr. Guberman assessed 22% lumbar spine impairment. Ms. Roberts’s
previous 13% permanent partial disability award was subtracted from the range of motion
impairment and a total of 9% whole person impairment was found for the November 17, 2009,
injury. Dr. Guberman placed Ms. Roberts in Lumbar Category II of West Virginia Code of State
Rules § 85-20-C and adjusted the impairment to 8%. A final independent medical evaluation was
performed by Victoria Langa, M.D., on October 2, 2012. Dr. Langa noted Ms. Roberts’s prior
13% permanent partial disability award. She assessed 17% whole person impairment. Because
Ms. Roberts had already been awarded a total of 18% permanent partial disability, she
recommended no additional award. Notably, she failed to apply West Virginia Code of State
Rules § 85-20 (2006) to her impairment assessment.

        The Office of Judges reversed the claims administrator’s grant of a 5% permanent partial
disability award and instead granted Ms. Roberts no permanent partial disability award in its
November 29, 2012, Order. The Office of Judges found that Ms. Roberts was granted a 13%
permanent partial disability award for the lumbar spine in a previous claim. The claims
administrator’s award in the instant claim was based upon Dr. Sethi’s independent medical
evaluation; however, Dr. Sethi failed to acknowledge and apportion for the previous award when
he assessed 5% whole person impairment. Dr. Guberman did apportion for the previous award;
however, he did so improperly by subtracting the previous award from his range of motion
findings instead of from his total impairment rating. Dr. Langa found a total of 17% impairment
in her evaluation, but she failed to apply West Virginia Code of State Rules § 85-20. The Office
of Judges determined that since Ms. Roberts’s previous permanent partial disability award was
due to a Lumbar Category III finding, she was not entitled to an additional permanent partial
disability award for the compensable lumbosacral strain in the instant case which placed her in
Lumbar Category II. The Office of Judges found that the only report of record that followed the
proper procedure for determining permanent impairment was the report of Dr. Koay upon which
the original 13% permanent partial disability award was granted. The Office of Judges found no
justification in any other report which would entitle Ms. Roberts to an additional award.
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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 30, 2013, decision. The Board of Review noted that Ms.
Roberts was previously granted a 13% permanent partial disability award and was classified
under Lumbar Category III. Therefore, she cannot be granted an award for the low back injury in
this claim under Lumbar Category II.

         On appeal, Ms. Roberts argues the Office of Judges and Board of Review committed
factual errors of interpretation regarding the independent medical evaluations of Dr. Guberman
and Dr. Langa. Mary Roberts asserts that Ms. Roberts has been fully compensated by her
previous permanent partial disability award and is entitled to no additional award in the instant
case. After review, this Court agrees with the reasoning and conclusions of the Board of Review.
Ms. Roberts has been fully compensated by her prior 13% permanent partial disability award and
is entitled to no additional 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: November 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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