                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS
                                                                                     FILED
                                                                                    August 26, 2016
WADE CANADA,                                                                    RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                        OF WEST VIRGINIA


vs.)   No. 15-0380 (BOR Appeal No. 2049960)
                   (Claim No. 2013008144)

ARCH COAL, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Wade Canada, by Anne L. Wandling, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Arch Coal, Inc., by Bradley A.
Crouser, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated April 1, 2015, in which
the Board affirmed an October 15, 2014, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s January 16, 2014, decision
granting Mr. Canada a 5% 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. Canada, a coal miner, was injured in the course of his employment when a rock fell
from a mine roof and struck his head and back on September 11, 2012. A cervical MRI taken
shortly after the injury revealed moderate left side stenosis at C3-4 with left disc bulging, a mild
protrusion at C4-5, a moderate herniation at C5-6, and mild bulging at C6-7. Edgardo Diez,
M.D., performed an independent medical evaluation in March of 2013 in which he found that
Mr. Canada had not yet reached maximum medical improvement because he needed further
cervical spine treatment. In a physician review shortly thereafter, Randall Short, D.O., was asked
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to review a surveillance video of Mr. Canada going to and from doctor’s appointments, including
Dr. Diez’s evaluation. Dr. Short noted that he was observed walking into and out of the
appointments using a cane and back brace. His walk was slow and appeared to be difficult.
However, after returning to his truck, Mr. Canada bent at the waist with no trouble, rotated his
head with no restriction, and walked normally without the brace or cane. Dr. Short opined that
his activities on the video appear to indicate symptom magnification when walking to and from a
treating or examining facility. In an addendum report, Dr. Diez stated that he reviewed the
surveillance footage. He opined that Mr. Canada showed pain operant behavior and symptom
magnification, which correlated with his assessment. He reiterated that Mr. Canada could return
to medium physical demand level work if more treatment was not offered.

        Mr. Canada underwent a second independent medical evaluation in December of 2013 by
Jerry Scott, M.D. Dr. Scott found that Mr. Canada was at maximum medical improvement and
opined that he would not need maintenance care for the compensable injury but may need it due
to his pre-existing condition. Dr. Scott further stated that Mr. Canada could return to work with
no restrictions. He assessed 9% cervical spine impairment using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993); however, he
noted that Mr. Canada had significant pre-existing degenerative changes. He therefore
apportioned 4% impairment to pre-existing cervical conditions and 5% impairment to the
compensable injury. The claims administrator granted Mr. Canada a 5% permanent partial
disability award on January 16, 2014.

        On May 19, 2014, Bruce Guberman, M.D., performed an independent medical evaluation
in which he diagnosed post-traumatic acute and chronic cervical and thoracic strains. He
assessed 8% cervical spine impairment and 5% thoracic spine impairment for a combined total of
13% whole person impairment. He disagreed with Dr. Scott’s evaluation in that Dr. Scott placed
Mr. Canada in Thoracic Category I of West Virginia Code of State Rules § 85-20-E (2006), and
Dr. Guberman believed he was better classified in Category II. He cited non-verifiable radicular
complaints. Dr. Guberman also disagreed with Dr. Scott’s decision to apportion his cervical
spine findings for pre-existing conditions. Dr. Guberman stated that Mr. Canada did not have
symptoms or range of motion loss in the cervical spine prior to the compensable injury.

        Michael Condaras, M.D., disagreed with Dr. Guberman’s recommendation in his July 18,
2014, independent medical evaluation. Dr. Condaras found that Mr. Canada belonged in Cervical
Category II and assessed 5% whole person impairment. For the thoracic spine, he found normal
range of motion and assessed 0% impairment. Dr. Condaras stated that he disagrees with Dr.
Guberman’s impairment recommendation because Dr. Guberman used Table 75 of the American
Medical Association’s Guides incorrectly when he assessed Mr. Canada’s cervical impairment.
Dr. Condaras stated that Mr. Canada had a cervical MRI performed approximately twenty-three
days before the compensable injury therefore the findings on the MRI, which Dr. Guberman
relied on, could not possibly have come from the compensable injury. Dr. Condaras opined that
the findings were pre-existing and occurred gradually over time.

        The Office of Judges affirmed the claims administrator’s grant of a 5% permanent partial
disability award in its October 15, 2014, Order. It determined that Dr. Condaras’s impairment
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recommendation was the most reliable of record. It noted that his findings were very similar to
Dr. Scott’s and that both physicians recommended 5% impairment. It also noted that neither
physician found range of motion abnormalities or impairment in the thoracic spine. The Office of
Judges determined that Dr. Guberman’s rating was unreliable because it did not correlate with
the evidence in the record. The Office of Judges found that Mr. Canada’s last appointment on
May 24, 2014, showed that he only complained of cervical and lower back pain. He was neither
diagnosed with nor mentioned thoracic problems. Furthermore, it was noted that Dr. Guberman
stated Mr. Canada had difficult changing his sock and shoes; however, video surveillance
showed him doing so without difficulty. Lastly, the Office of Judges concluded that Mr. Canada
showed inconsistent behaviors when at or near treating facilities. Drs. Short and Diez reviewed
the surveillance video and both opined that he was magnifying his symptoms. The Board of
Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed
its Order on April 1, 2015.

        On appeal, Mr. Canada argues that he is entitled to an additional award for the cervical
spine based on Dr. Guberman’s evaluation. He asserts Dr. Guberman was correct to not
apportion the injury for pre-existing impairment because he had no cervical spine impairment
prior to the compensable injury. Arch Coal, Inc., argues that the reports of Drs. Scott and
Condaras are more reliable than that of Dr. Guberman. It asserts that Mr. Canada suffered from
pre-existing cervical spine conditions and is only entitled to a 5% award.

        After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. Dr. Condaras’s report is the most reliable of record and is supported by Dr.
Scott’s evaluation as well as the evidence of record. Dr. Guberman’s report was the only of
record to find impairment for the thoracic spine. Additionally, multiple physicians of record
opined that Dr. Guberman failed to provide proper justification for his impairment
recommendation. The preponderance of the evidence indicates Mr. Canada suffered 5%
impairment as a result of his compensable injury.

        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: August 26, 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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