                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 19, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ADAM SMITH,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0532	 (BOR Appeal No. 2046431)
                   (Claim No. 2009071899)

TRI-STAR TELECOM SERVICES, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Adam Smith, by Cathy Greiner, his attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Tri-Star Telecom Services, LLC, by
Matthew Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated April 25, 2012, in
which the Board affirmed a May 31, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 18, 2009,
decision granting Mr. Smith a 13% 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. Smith was injured on December 11, 2008, when he fell backwards into a concrete
piling while cutting a telephone pole. The claim was held compensable for contusion of the back,
fracture of lumbar vertebra, and fracture of dorsal vertebra. Mr. Smith has undergone three
independent medical evaluations to determine the amount of permanent impairment resulting
from these injuries. Dr. Loimil and Dr. Ranavaya both utilized the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) and West
Virginia Code of State Rules § 85-20 (2006), and both recommended a 13% permanent partial
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disability award. Dr. Guberman recommended a 15% permanent partial disability award utilizing
the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.)
and West Virginia Code of State Rules § 85-20. However, he stated that in his opinion, West
Virginia Code of State Rules § 85-20 does not provide an accurate method of obtaining an
impairment rating given Mr. Smith’s particular injuries. He then recommended a 28% permanent
partial disability award utilizing the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (5th ed. 2000). On August 18, 2009, the claims administrator granted Mr.
Smith a 13% permanent partial disability award.

        In its Order affirming the August 18, 2009, claims administrator’s decision, the Office of
Judges held that Mr. Smith has a total of 13% whole person impairment for his compensable
injuries. Mr. Smith disputes this finding and asserts, per the opinion of Dr. Guberman, that he is
entitled to at least a 15% permanent partial disability award.

        As was noted by the Office of Judges, Dr. Guberman is not permitted to bypass West
Virginia Code of State Rules § 85-20 and therefore his recommendation of a 28% permanent
partial disability award is erroneous. After reviewing the evidence of record, the Office of Judges
found the opinions of Dr. Loimil and Dr. Ranavaya, who both recommended a 13% permanent
partial disability award, to be persuasive. The Board of Review affirmed the reasoning and
conclusions of the Office of Judges in its decision of April 25, 2012. We agree with the
conclusions of 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: December 19, 2013

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




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