                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 14, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
SUSIE EDWARDS,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0154	 (BOR Appeal No. 2048643)
                   (Claim No. 2010132398)

HEALTHSOUTH CORPORATION,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Susie Edwards, by Gregory Prudich, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Healthsouth Corporation, by Tanya
Kaplan and Jeffrey Brannon, its attorneys, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 27, 2014, in
which the Board affirmed a July 31, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s December 15,
2011, decision granting Ms. Edwards a 3% permanent partial disability award, and granted Ms.
Edwards a 4% 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. Edwards injured her right shoulder and arm on April 26, 2010, when she tripped over
a telephone cord and fell. She has undergone four independent medical evaluations for the
purpose of determining the amount of permanent impairment arising from her injuries. On
October 20, 2011, Barry Levin, M.D., examined Ms. Edwards and opined that she sustained 3%
whole person impairment as a result of range of motion limitations in flexion and abduction of
the right shoulder. Dr. Levin opined that rotation in the right shoulder was within normal limits.
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On December 15, 2011, the claims administrator granted Ms. Edwards a 3% permanent partial
disability award based on Dr. Levin’s recommendation.

        On October 8, 2012, Bruce Guberman, M.D., performed an independent medical
evaluation. He opined that Ms. Edwards sustained 7% whole person impairment as a result of
range of motion limitations in flexion, extension, abduction, adduction, internal rotation, and
external rotation of the right shoulder. Bill Hennessey, M.D., examined Ms. Edwards on March
19, 2013. He opined that Ms. Edwards sustained 4% whole person impairment as a result of mild
range of motion limitations in flexion, abduction, and internal rotation. Dr. Hennessey reviewed
Dr. Guberman’s report and opined that there is no objective basis for Dr. Guberman’s subjective
findings concerning loss of range of motion in Ms. Edward’s right shoulder. Finally, Prasadarao
Mukkamala, M.D., examined Ms. Edwards on March 20, 2013. Dr. Mukkamala opined that Ms.
Edwards sustained 3% whole person impairment as a result of range of motion limitations in
flexion and abduction of the right shoulder. Dr. Mukkamala also reviewed Dr. Guberman’s
report and opined that Dr. Guberman’s findings could not be substantiated. He further opined
that Dr. Guberman’s findings are not consistent with those of the other physicians of record.

       In its Order reversing the December 15, 2011, claims administrator’s decision, the Office
of Judges held that the evidence of record demonstrates that Ms. Edwards sustained 4% whole
person impairment as a result of the April 26, 2010, injury. On appeal, Ms. Edwards asserts that
she is entitled to an additional 3% permanent partial disability award, per the opinion of Dr.
Guberman.

       The Office of Judges concluded that Dr. Guberman’s findings are not persuasive. The
Office of Judges then determined that the findings of Dr. Levin, Dr. Hennessey, and Dr.
Mukkamala are entitled to equal evidentiary weight. Therefore, in accordance with the
provisions of West Virginia Code § 23-4-1g(a) (2003), the Office of Judges adopted the finding
most consistent with Ms. Edwards’s position, namely Dr. Hennessey’s determination that she
sustained 4% whole person impairment. The Board of Review adopted the reasoning and
conclusions of the Office of Judges in its decision of January 27, 2014. We agree with the
conclusions of the Board of Review. Dr. Hennessey and Dr. Mukkamala, who both evaluated
Ms. Edwards following Dr. Guberman’s evaluation, were unable to substantiate Dr. Guberman’s
findings, and the Office of Judges and Board of Review properly determined that Dr.
Guberman’s report is entitled to less evidentiary weight. In weighing the remainder of the
evidence, the Office of Judges and Board of Review properly applied West Virginia Code § 23­
4-1g(a) when concluding that Ms. Edwards is entitled to a 4% permanent partial disability 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 14, 2014
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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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