                                 STATE OF WEST VIRGINIA
                                                                                              FILED
                              SUPREME COURT OF APPEALS                                   October 25, 2013
                                                                                      RORY L. PERRY II, CLERK
                                                                                    SUPREME COURT OF APPEALS
CARMEN DESTEFANO JR.,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)    No. 11-1634 (BOR Appeal No. 2045861)
                    (Claim No. 990051859)

WHEELING-PITTSBURGH STEEL CORPORATION,
Employer Below, Respondent


                                 MEMORANDUM DECISION
        Petitioner Carmen Destefano Jr., by Robert M. Williams, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Wheeling-Pittsburgh
Steel, by Lucinda L. Fluharty,1 its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated November 4, 2011, in
which the Board affirmed a March 30, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 26, 2010,
decision which held that Mr. Destefano had been fully compensated by his prior 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. Destefano incurred significant burns on his back on February 1, 1999, in the course
of and resulting from his employment at Wheeling-Pittsburgh Steel Corporation. Mr. Destefano
received a 20% permanent partial disability award related to his physical injury and a 13%
permanent partial disability award related to his psychiatric impairment. On March 8, 2007, Dr.

1
 Lucinda L. Fluharty of Jackson Kelly, PLLC, withdrew as counsel for employer, Wheeling-Pittsburgh Steel
Corporation on October 3, 2012, after submitting its Response Brief.
                                                         1
Guberman diagnosed Mr. Destefano with second degree burns and he found a 24% impairment
rating based on the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993). However, when Dr. Martin evaluated Mr. Destefano under the
Guides on March 3, 2010, he found that Mr. Destefano had only 10% impairment from his burn
injury. Based on Dr. Martin’s report, the claims administrator denied Mr. Destefano’s application
for additional permanent partial disability, on March 26, 2010, finding that he had been fully
compensated by his prior award. Following the claims administrator decision, Mr. Destefano was
also evaluated by Dr. Langa, who found that he had second degree burns and recommended a
10% impairment rating based on the American Medical Association’s Guides. The claims
administrator’s decision was affirmed by the Office of Judges on March 30, 2011. The Order of
the Office of Judges was affirmed on November 4, 2011, leading to this appeal.

        The Office of Judges concluded that Mr. Destefano had been fully compensated by his
prior 20% permanent partial disability award for the scarring that was incurred as a result of his
February 1, 1999, burn injury. The Office of Judges placed significant weight on the reports of
Dr. Martin and Dr. Langa who both found 10% impairment due to Mr. Destefano’s burn scars.
The Office of Judges compared the recommendations of Dr. Martin and Dr. Langa to the
recommendation of Dr. Guberman, who found 24% impairment from the scarring. But the Office
of Judges placed more weight on the recommendations of Dr. Martin and Dr. Langa because
they occurred later in time. The Office of Judges found that, since Mr. Destefano had already
received a 20% permanent partial disability award, he had been fully compensated by the prior
award. The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on November 4, 2011.

        We agree with the conclusion of the Board of Review. The Office of Judges based its
determination on a preponderance of the evidence and had specific and legitimate reasons for
placing more significant weight on the recommendations of Dr. Martin and Dr. Langa than on
the recommendation of Dr. Guberman. The 10% impairment rating recommended by both Dr.
Martin and Dr. Langa is consistent with the evidence in the record. Since Mr. Destefano has
previously received a 20% permanent partial disability award, he has been fully compensated for
the scarring related to his February 1, 1999, injury,

        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: October 25, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
                                                2
Justice Allen H. Loughry II

DISSENTING:
Justice Menis E. Ketchum




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