                              STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

TIMOTHY P. RICHARDS,                                                                 FILED
Claimant Below, Petitioner                                                       March 25, 2016
                                                                               RORY L. PERRY II, CLERK

                                                                             SUPREME COURT OF APPEALS

vs.)   No. 15-0367 (BOR Appeal No. 2049860)                                      OF WEST VIRGINIA


                   (Claim No. 2010128197)

WEST VIRGINIA SECRETARY OF STATE,
Employer Below, Respondent


                              MEMORANDUM DECISION
         Petitioner Timothy P. Richards, by Stephen P. New, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. West Virginia Secretary of State,
by Jillian L. Moore, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated March 31, 2015, in
which the Board affirmed an October 3, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 17, 2013,
decision which granted Mr. Richards an additional 0% 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. Richards, a special products manager, was injured on March 16, 2010, when he
tripped over a broken sidewalk and fell. The fall resulted in fractures to the radial heads of both
elbows. Mr. Richards was treated with physical therapy and work hardening. On March 14,
2011, Saghir Mir, M.D., performed an independent medical evaluation in which he determined
that Mr. Richards had reached maximum medical improvement for his bilateral elbow fractures.
Dr. Mir stated that Mr. Richards could resume his regular work. Using the range of motion
method found in the American Medical Association’s Guides to the Evaluation of Permanent
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Impairment (4th ed. 1993), Dr. Mir assessed 3% left elbow impairment and 2% right elbow
impairment for a total of 5% whole person impairment. The claims administrator subsequently
awarded Mr. Richards a 5% permanent partial disability award.

        On February 22, 2012, Bruce Guberman, M.D., performed an independent medical
evaluation in which he diagnosed status post contusion and strain of both forearms with fractures
of both radial heads. He noted residual symptoms, mainly weakness and decreased grip strength,
in both hands. Dr. Guberman asserted that Mr. Richards’s bilateral weakness and decreased
strength necessitated the use of Tables 64 and 65 of the American Medical Association’s Guides
in order to determine Mr. Richards’s whole person impairment. Using those tables, Dr.
Guberman assessed 12% impairment for the right arm/hand and 12% for the left arm/hand for a
combined impairment of 23%. Since Mr. Richards already received a 5% award, Dr. Guberman
recommended an additional 18% award.

        Prasadarao Mukkamala, M.D., reviewed Dr. Guberman’s evaluation in an April 30, 2012,
physician’s review. Dr. Mukkamala found that Dr. Guberman noted normal range of motion in
his examination; however, he calculated 12% whole person impairment for each upper extremity
using the strength loss index. Dr. Mukkamala noted that the American Medical Association’s
Guides provide that because strength measurements are influenced by subjective factors and
difficult to control, they are not assigned a large role in impairment measurements. The Guides
indicate that more research is needed before pinch and grip strength is given a larger role in
impairment evaluations. Dr. Mukkamala found that at the time of Dr. Guberman’s evaluation,
Mr. Richards had been working full time. Using range of motion findings, Dr. Mukkamala
concluded that Mr. Richards actually improved between Dr. Mir’s evaluation and Dr.
Guberman’s. Dr. Mukkamala further concluded that there was nothing rare in this case that
would allow for the use of grip strength measurements for impairment, and he therefore
recommended that the additional impairment not be allowed.

        On June 8, 2012, Paul Bachwitt, M.D., performed an independent medical evaluation of
Mr. Richards. Dr. Bachwitt found that Mr. Richards had reached maximum medical
improvement and had normal range of motion, motor strength, pinch strength, and grip strength
in both arms. He therefore assessed 0% impairment. In an addendum report, Dr. Bachwitt was
asked to comment on Dr. Guberman’s findings. Dr. Bachwitt quoted the American Medical
Association’s Guides and stated that the Guides are largely controlled by anatomic impairment
and those who contributed to the Guides believe that further research is needed before loss of
grip and pinch strength is given a larger role in impairment evaluation. He further found that in
this specific case Mr. Richards had normal grip and pinch strengths on exam. He also had normal
range of motion in both elbows, and the radial fractures had healed in acceptable position and
alignment. Dr. Bachwitt therefore disagreed with Dr. Guberman’s assessment.

       A final independent medical evaluation was performed by Christopher Martin, M.D., in
June of 2014. Dr. Martin found normal range of motion, assessed 0% impairment, and stated that
he concurred with Dr. Bachwitt’s assessment. Dr. Martin disagreed with Dr. Guberman’s
impairment formulation because he made several errors in his application of the American
Medical Association’s Guides. Dr. Martin stated that Dr. Guberman assessed impairment using a
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completely different method from all other examiners. He further noted that Dr. Guberman’s
impairment findings would result in 27% impairment when properly combined; however, Dr.
Guberman’s own examination showed normal range of motion in both elbows. Dr. Guberman
also failed to verify his grip strength measurements as required under the American Medical
Association’s Guides.

        The claims administrator granted Mr. Richards a 0% permanent partial disability award
on July 17, 2013. The Office of Judges affirmed the decision in its October 3, 2014, Order. It
found that three of the four evaluating physicians calculated Mr. Richards’s impairment using
range of motion measurements. Dr. Mir found 5% impairment, and Drs. Bachwitt and Martin
both found normal range of motion and therefore assessed 0% impairment. In contrast, Dr.
Guberman assessed 23% whole person impairment for reduced grip strength. The Office of
Judges determined that he was the only evaluator of record to assess impairment using strength
measurements. Further, Drs. Bachwitt, Martin, and Mukkamala all opined that Dr. Guberman
erred by using grip strength to calculate impairment because the American Medical
Association’s Guides discourages the use of strength measurements. The Office of Judges
concluded that the use of strength measurements to evaluate impairment is discouraged except in
the rarest of cases. According to the Guides, strength measurements should only be used when
other criteria have not adequately measured impairment. The Office of Judges also noted that the
two most recent independent medical evaluations indicate Mr. Richards has fully recovered with
no residual impairment. Dr. Guberman’s report was therefore found to be an unreliable
assessment of his impairment. The Office of Judges held that Mr. Richards was fully
compensated by his prior 5% permanent partial disability award. The Board of Review adopted
the findings of fact and conclusions of law of the Office of Judges and affirmed its Order.

       On appeal Mr. Richards argues that the Office of Judges erred in its determination that
Dr. Guberman’s report is less reliable than the others of record. The West Virginia Secretary of
State asserts that Dr. Guberman’s assessment was unreliable because his findings were
inconsistent with the evidence of record and based on a rating method that the American Medical
Association’s Guides discourages.

       After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. Dr. Guberman failed to sufficiently justify his departure from the normal,
recommended impairment rating method. The American Medical Association’s Guides clearly
provides that strength measurements are subjective and discourages their use when other criteria
are available and appropriate. The evidence shows that this was not a special case for which grip
and strength measurements were appropriate for measuring impairment. Additionally, Dr.
Guberman’s impairment rating was significantly higher than all the others of record. He assessed
23% impairment whereas the other physicians of record found a maximum of 5% impairment.
The Board of Review was therefore justified in disregarding his opinion.

        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.
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                                     Affirmed.

ISSUED: March 25, 2016

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




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