                               STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

TINA L. ELLIS,                                                                      FILED
Claimant Below, Petitioner                                                         June 22, 2016

                                                                              RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                OF WEST VIRGINIA

vs.)     No. 15-0760	 (BOR Appeal No. 2050118)
                     (Claim No. 2013013847)

HMA, INC.,

Employer Below, Respondent



                               MEMORANDUM DECISION
         Petitioner Tina L. Ellis, by Stephen New, her attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. HMA, Inc., by Steven Wellman, its attorney,
filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated July 6, 2015, in which
the Board affirmed a December 18, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s November 1, 2013,
decision granting Ms. Ellis a 20% 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. Ellis sustained a compensable injury on November 24, 2012, while maneuvering a
patient in an emergency situation during the course of her employment as a registered nurse.1
Prior to the compensable injury, Ms. Ellis sought treatment from Muneel Abbas, M.D., and
David Weinsweig, M.D., for lower back pain. MRIs of the lumbar spine performed in January of
2012 revealed extensive degenerative disc disease and spondylolisthesis at L5-S1. In February of

1
    The Order or Orders holding the compensable were not submitted into evidence.
                                                1
2013, Ms. Ellis underwent an elective L5-S1 fusion performed by Dr. Weinsweig for the
treatment of spondylolisthesis at L5-S1.

        Ms. Ellis has undergone two independent medical evaluations for the purpose of
determining the amount of permanent impairment arising from the November 24, 2014, injury.
On October 9, 2013, Paul Bachwitt, M.D., authored a report memorializing the results of an
independent medical evaluation performed by him on October 3, 2013. Utilizing the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr.
Bachwitt opined that Ms. Ellis sustained 12% whole person impairment as a result of the L5-S1
spinal fusion. He further opined that she sustained 12% whole person impairment as a result of
range of motion abnormalities in the lumbar spine. Dr. Bachwitt then placed Ms. Ellis in Lumbar
Category IV of West Virginia Code of State Rules § 85-20-Table C (2006), and therefore
adjusted his whole person impairment recommendation to 20%. Based upon Dr. Bachwitt’s
report, the claims administrator granted Ms. Ellis a 20% permanent partial disability award on
November 1, 2013.

       Bruce Guberman, M.D., performed an independent medical evaluation on April 2, 2014,
and authored a report memorializing his findings on the same date. Based upon Ms. Ellis’s
statement that she injured both her thoracic and lumbar spine, Dr. Guberman performed
evaluations of both areas. Dr. Guberman opined that Ms. Ellis sustained 12% whole person
impairment as a result of the L5-S1 fusion. He further opined that she sustained 4% whole
person impairment as a result of range of motion abnormalities in the lumbar spine and 4%
whole person impairment as a result of neurological deficits in the lumbar spine. Dr. Guberman
placed Ms. Ellis in Lumbar Category V of West Virginia Code of State Rules § 85-20-Table C
based upon her history of a lumbar spine fusion and radicular symptoms, and therefore adjusted
his whole person impairment recommendation to 25%. Regarding the thoracic spine, Dr.
Guberman opined that Ms. Ellis sustained 8% whole person impairment.

        In its Order affirming the November 1, 2013, claims administrator’s decision, the Office
of Judges held that the evidence of record demonstrates that Ms. Ellis is not entitled to an award
greater than the 20% permanent partial disability award she has already received for the injuries
to her lumbar spine. The Board of Review affirmed the reasoning and conclusions of the Office
of Judges in its decision dated July 6, 2015. On appeal, Ms. Ellis asserts that she is entitled to an
additional permanent partial disability award consistent with the opinions expressed by Dr.
Guberman.

        The Office of Judges found that the evidence of record demonstrates that prior to the
November 24, 2012, injury, Ms. Ellis was experiencing significant lumbar spine problems
including spinal stenosis and degenerative disc disease at multiple levels for which she pursued a
neurosurgical consultation. Further, the Office of Judges noted that Ms. Ellis expressed a desire
to pursue surgical intervention for her lower back condition prior to the November 24, 2012,
injury. The Office of Judges then noted that one of the primary issues for consideration on appeal
is the compensability of the thoracic spine, which Dr. Guberman evaluated but Dr. Bachwitt did
not. The Office of Judges found that there is very little mention of the thoracic spine in the
record and also noted that the physician’s portion of the Report of Injury did not list a diagnosis
                                                 2
involving the thoracic spine. The Office of Judges also noted that the Order or Orders holding
the claim compensable have not been submitted into evidence. Therefore, the Office of Judges
determined that the only plausible inference which can be drawn from the evidence of record is
that the thoracic spine is not a compensable body part. The Office of Judges then concluded that
Dr. Guberman’s rating of the thoracic spine was inappropriate given that the evidence of record
fails to demonstrate that the thoracic spine is a compensable body part. Finally, after reviewing
the record, the Office of Judges found that Dr. Bachwitt’s opinions regarding the amount of
permanent impairment in the lumbar spine are more persuasive than those expressed by Dr.
Guberman, and the Office of Judges adopted the conclusions set forth by Dr. Bachwitt. We agree
with the reasoning and conclusions of the Office of Judges, as affirmed by the Board of Review.

        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: June 22, 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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