                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 10, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ANNETTE MAXWELL,                                                              OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0965 (BOR Appeal No. 2048200)
                   (Claim No. 2011042334)

TRINITY HEALTHCARE SERVICES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Annette Maxwell, by John C. Blair, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Trinity Healthcare Services, Inc., by
Steven K. Wellman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 5, 2013, in
which the Board affirmed a February 12, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s September 13,
2011, decision which granted Ms. Maxwell a 10% 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. Maxwell, a certified nursing assistant, injured her neck, back, and right shoulder in
the course of her employment while moving a patient on March 10, 2011. An April 5, 2011,
treatment note by Stanley Tao, M.D., indicates he diagnosed neck sprain, cervical radiculitis,
contusion of the shoulder region, and shoulder joint pain. He felt most of the symptoms were
cervical in nature and recommended physical therapy. Robert McCleary, D.O., stated in a June
27, 2011, treatment note that Ms. Maxwell was treated for cervical spine and right shoulder
sprain/strain and was released to return to light duty work on July 11, 2011.
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       Three independent medical evaluations were performed in order to determine the amount
of permanent impairment Ms. Maxwell sustained as a result of her compensable injury. The first
evaluation was performed on August 30, 2011, by Paul Bachwitt, M.D. He diagnosed cervical
and right shoulder sprains/strains and opined that Ms. Maxwell had reached maximum medical
improvement and would not benefit from surgery for either injury. He assessed 8% cervical
spine impairment and 2% impairment for the right shoulder for a total whole person impairment
of 10%. He opined that she could return to full duty work with no restrictions. The claims
administrator thereafter granted Ms. Maxwell a 10% permanent partial disability award on
September 13, 2011.

        A second independent medical evaluation was performed by Bruce Guberman, M.D., on
March 14, 2012. Dr. Guberman stated that Ms. Maxwell reported pain in her cervical and
thoracic spine as well as in her right shoulder, arm, and elbow. He diagnosed acute and chronic
post-traumatic cervical and thoracic spine strain and chronic post-traumatic strain of the right
shoulder and stated that she had reached maximum medical improvement. He assessed 8%
cervical spine impairment, 5% thoracic spine impairment, and 6% right shoulder impairment for
a combined total of 18% whole person impairment.

       The third independent medical evaluation was performed by Prasadarao Mukkamala,
M.D., on October 23, 2012. Dr. Mukkamala noted that the allowed conditions in the claim are
right shoulder sprain and neck sprain. He found that thoracic spine range of motion was
completely normal. Ms. Maxwell had reached maximum medical improvement. He assessed 5%
cervical impairment and 2% impairment for the right shoulder for a total of 7% whole person
impairment. Dr. Mukkamala opined that Ms. Maxwell did not injure her thoracic spine. She
completed a back pain form and pain diagram in which she indicated that she injured and had
pain in her upper shoulder and neck. She did not mention an injury to or pain in her thoracic
spine or mid-back.

        The Office of Judges affirmed the claims administrator’s decision, which granted Ms.
Maxwell a 10% permanent partial disability award, in its February 12, 2013, Order. The Office
of Judges determined that Dr. Guberman’s report was unreliable. The thoracic spine has not been
held as a compensable component of the claim. Ms. Maxwell has never been treated for the
thoracic spine and Dr. Guberman was the only examiner to whom she reported thoracic spine
pain. Dr. Mukkamala examined the thoracic spine and found no abnormality. Accordingly, the
Office of Judges found that the thoracic spine was not a compensable component of the claim
and there is no reliable evidence of residual impairment. Regarding the cervical spine, the Office
of Judges found that Drs. Guberman and Bachwitt both assessed 8% impairment. Dr.
Mukkamala assessed 5% impairment. The difference was resolved in favor of Ms. Maxwell.
Regarding the right shoulder, the Office of Judges determined that Dr. Guberman’s range of
motion findings were not duplicated. Drs. Mukkamala and Bachwitt both found 2% impairment
for the right shoulder. Dr. Guberman’s finding of 6% was determined to be unreliable.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 5, 2013, decision. On appeal, Ms. Maxwell argues
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that she injured her thoracic spine in the course of her employment and it should therefore be
included in the claim. She further argues that she should be awarded a 5% permanent partial
disability award based upon the report of Dr. Guberman. Trinity Healthcare Services, Inc.,
asserts that the thoracic spine is not a compensable component of the claim and she therefore
cannot be granted a permanent partial disability award for the condition. After review, this Court
agrees with the reasoning of the Office of Judges and the conclusions of the Board of Review.
The evidentiary record indicates that the thoracic spine has not been held as a compensable
component of the claim. The evidentiary record also indicates that Ms. Maxwell is entitled to a
10% permanent partial disability award representing 2% for the right shoulder and 8% for the
cervical spine.

        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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