          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                   January 2016 Term
                                   _______________                              FILED
                                                                             June 15, 2016
                                     No. 14-0471                                released at 3:00 p.m.
                                   _______________                            RORY L. PERRY II, CLERK

                                                                            SUPREME COURT OF APPEALS

                                                                                 OF WEST VIRGINIA


                                     SWVA, Inc.,

                               Employer Below, Petitioner


                                           v.

                                   EDWARD BIRCH,

                               Claimant Below, Respondent


       ____________________________________________________________

               Appeal from the West Virginia Workers’ Compensation

                                 Board of Review

                              Claim No. 2004040678


                                REVERSED

       ____________________________________________________________

                               Submitted: January 26, 2016

                                          Filed:


Steven K. Wellman, Esq.                         Edwin H. Pancake, Esq.

Jenkins, Fenstermaker, PLLC                     Maroney, Williams, Weaver & Pancake,

Huntington, West Virginia                       PLLC

Counsel for the Petitioner                      Charleston, West Virginia

                                                Counsel for the Respondent
Lisa Warner Hunter, Esq.
Michelle Rae Johnson, Esq.                      William B. Gerwig, III
Pullin, Fowler, Flanagan,                       Charleston, West Virginia
Brown & Poe, PLLC                               Pro Se Amicus Curiae
Charleston, West Virginia
Attorneys for Amicus Curiae,
The Defense Trial Counsel
of West Virginia
JUSTICE BENJAMIN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT


              1.     “An appellate court should not overrule a previous decision recently

rendered without evidence of changing conditions or serious judicial error in

interpretation sufficient to compel deviation from the basic policy of the doctrine of stare

decisis, which is to promote certainty, stability, and uniformity in the law.” Syl. pt. 2,

Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974).



              2.     The purpose of W. Va. Code § 23-4-9b (2003) is to disallow any

consideration of any preexisting definitely ascertainable impairment in determining the

percentage of permanent partial disability occasioned by a subsequent compensable

injury, except in those instances where the second injury results in total permanent

disability within the meaning of W. Va. Code § 23-3-1 (2005).



              3.     In fixing the amount of a permanent partial disability award for a

compensable injury suffered by a workers’ compensation claimant who has a

noncompensable      preexisting   definitely   ascertainable   impairment,    the   correct

methodology pursuant to W. Va. Code § 23-4-9b (2003) is to deduct the impairment

attributed to the preexisting injury from the final whole person impairment rating as

determined under West Virginia Code of State Rules § 85-20.
Benjamin, Justice:



             In this workers’ compensation case, the Petitioner, SWVA, Inc., appeals an

April 18, 2014, final decision of the West Virginia Workers’ Compensation Board of

Review (“BOR”). The BOR affirmed a November 7, 2013, Order of the Workers’

Compensation Office of Judges (“OOJ”), in which the OOJ reversed a November 15,

2011, claims administrator’s decision to grant the claimant, Edward Birch, an 8%

permanent partial disability (“PPD”) award. The OOJ granted an additional 5% PPD

award for a total of 13%. On appeal, we asked the parties to answer the following

question: what is the correct methodology for apportioning the level of impairment in

workers’ compensation cases involving preexisting conditions? Having fully considered

the parties’ arguments, the record before us on appeal, and applicable legal precedent, we

reverse the BOR’s order.1



             I. FACTUAL AND PROCEDURAL BACKGROUND

             Mr. Birch was moving a piece of metal when he slipped on some grease

and injured his lower back in March 2004. The claim was held compensable for a lumbar

sprain and backache.

      1
          We wish to acknowledge the amicus briefs filed in this matter. The Court has
taken into consideration the arguments made on behalf of SWVA, Inc. by the amicus
brief of the Defense Trial Counsel of West Virginia and the amicus brief filed by William
B. Gerwig, III who argues on behalf of the respondent.


                                            1

             Mr. Birch was examined by Dr. Marsha Bailey who found him to be at

maximum medical improvement in regard to his compensable back injury. Dr. Bailey

found Mr. Birch to fall under Category II-E of Table 75 of the American Medical

Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“AMA

Guides”) for a total of 12% whole person impairment (“WPI”). Dr. Bailey found no

impairment for abnormal range of motion of the lumbar spine as Mr. Birch’s

measurements were restricted by pain and considered invalid for rating purposes. Dr.

Bailey placed Mr. Birch under Lumbar Category III of West Virginia Code of State Rules

§ 85-20-C (2006) (“Rule 20”).2 However, Dr. Bailey found that a portion of Mr. Birch’s

impairment should be apportioned for the preexisting conditions of degenerative joint and

disc disease. Dr. Bailey apportioned 4% of Mr. Birch’s impairment to these preexisting

conditions and recommended 8% whole person impairment for the compensable injury.

Based upon Dr. Bailey’s findings, the claims administrator granted Mr. Birch an 8% PPD

award. Mr. Birch protested the award.



             Mr. Birch was thereafter evaluated by Dr. Bruce Guberman.               Dr.

Guberman, like Dr. Bailey, found Mr. Birch to have 12% WPI under Table 75 of the

AMA’s Guides. Dr. Guberman also found Mr. Birch to have 13% whole person

      2
        West Virginia Code of State Rules § 85-20-C is a table of PPD ranges containing
five categories of criteria for rating impairment due to lumbar spine injury. Lumbar
Category I is 0% impairment of the whole person; Category II is 5% to 8%; Category III
is 10% to 13%; Category IV is 20% to 23%; and Category V is 25% to 28%.


                                           2

impairment for abnormal range of motion of the lumbar spine. At that point, Dr.

Guberman determined that preexisting degenerative changes had likely contributed to

Mr. Birch’s range of motion abnormalities and apportioned these preexisting conditions

at 6%. Dr. Guberman then subtracted the 6% from the 13% range of motion impairment

for a total range of motion impairment of 7%. Dr. Guberman then combined the

diagnosis-based 12% impairment with the 7% range of motion impairment using the

Combined Values Chart in the AMA Guides to find a combined whole person

impairment of 18%. Because this percentage of impairment exceeded the allowable

impairment range under Category III of Rule 85-20-C, which is 10 to 13%, Dr.

Guberman adjusted Mr. Birch’s impairment rating to 13% WPI. Dr. Guberman opined

that Dr. Bailey incorrectly apportioned impairment for preexisting degenerative changes

from her final impairment rating under Rule 20. As noted above, Dr. Guberman

apportioned for Mr. Birch’s preexisting condition and deducted this percentage from the

range of motion impairment rating before utilizing the combined values chart under the

AMA Guides, and then determined the final whole person impairment rating under Rule

20.



             By decision dated November 7, 2013, the OOJ reversed the claims

administrator’s decision and granted an additional 5% PPD for a total of 13% PPD

relying on Dr. Guberman’s recommendation. In doing so, the OOJ reasoned as follows:




                                          3

                Pursuant to W. Va. Code § 23-4-9b and W. Va. C.S.R.
         § 85-20-643 it is found that any apportionment for pre­
         existing impairment should be made from a claimant’s whole
         person impairment as determined under the range of motion
         model, and not from the final PPD rating as determined under
         Rule 20. W. Va. Code § 23-4-9b refers to both ascertainable
         impairment related to a pre-existing condition and the award
         of compensation; however, impairment and compensation are
         not synonymous. Impairment is a medical assessment based
         upon the AMA Guides, while permanent partial disability is a
         legal measure of the amount of compensation to which the

3
    West Virginia Code of State Rules § 85-20-64 provides, in pertinent part,

         64.1.

         Pursuant to W. Va. Code § 23-4-3b(b), the Commission or
         Insurance Commissioner, whichever is applicable, hereby
         adopts the following ranges of permanent partial disability for
         common injuries and diseases. Permanent partial disability
         assessments shall be determined based upon the range of
         motion models contained in the Guides Fourth. Once an
         impairment level has been determined by range of motion
         assessment, that level will be compared with the ranges set
         forth below. Permanent partial disability assessments in
         excess of the range provided in the appropriate category as
         identified by the rating physician shall be reduced to the [sic]
         within the ranges set forth below:

         64.2. Lumbar Spine Impairment.

         The range of motion methodology for assessing permanent
         impairment shall be used. However, a single injury or
         cumulative injuries that lead to a permanent impairment to the
         Lumbar Spine area of one's person shall cause an injured
         worker to be eligible to receive a permanent partial disability
         award within the ranges identified in Table § 85-20-C. The
         rating physician must identify the appropriate impairment
         category and then assign an impairment within the
         appropriate range designated for that category.


                                        4
              claimant is entitled. According to the clear language of the
              statute, W. Va. Code § 23-4-9b provides for the
              apportionment of impairment related to a pre-existing injury,
              not the apportionment of permanent partial disability.

On April 18, 2014, the BOR affirmed the OOJ decision. SWVA appealed to this Court.

Both SWVA and Mr. Birch ultimately filed supplemental briefs to address the following

question posed by this Court: What is the correct methodology for apportioning the level

of impairment in workers’ compensation cases involving preexisting conditions?



                              II. STANDARD OF REVIEW

              We indicated in Hammonds v. West Virginia Office of Insurance

Commissioner, 235 W. Va. 577, 582, 775 S.E.2d 458, 463 (2015), that “[t]he standard of

review applicable to this Court’s consideration of workers’ compensation appeals from

the Board of Review is set forth in W. Va. Code §§ 23-5-15(b-d) (2005) (Repl. Vol.

2010).” Because the BOR decision at issue represents a reversal of the claims

administrator, subsections (b) and (d) are applicable in the instant case. These sections

provides in pertinent part:

                     (b) In reviewing a decision of the board of review, the
              Supreme Court of Appeals shall consider the record provided
              by the board and give deference to the board’s findings,
              reasoning and conclusions[.]
                     ....
                     (d) If the decision of the board effectively represents a
              reversal of a prior ruling of either the commission or the
              Office of Judges that was entered on the same issue in the
              same claim, the decision of the board may be reversed or
              modified by the Supreme Court of Appeals only if the
              decision is in clear violation of constitutional or statutory

                                             5
              provisions, is clearly the result of erroneous conclusions of
              law, or is so clearly wrong based upon the evidentiary record
              that even when all inferences are resolved in favor of the
              board’s findings, reasoning and conclusions, there is
              insufficient support to sustain the decision. The court may
              not conduct a de novo re-weighing of the evidentiary record.

The sole issue in this case is legal in nature. “[W]e apply a de novo standard of review to

questions of law arising in the context of decisions issues by the Workers’ Compensation

Appeal Board.” Justice v. W. Va. Office Ins. Comm’n, 230 W. Va. 80, 83, 736 S.E.2d 80,

83 (2012) (citation omitted). With these standards in mind, we proceed to determine

whether the BOR committed error in affirming the decision of the OOJ which reversed

the decision of the claims administrator.



                                     III. ANALYSIS

              The issue in this case concerns the correct methodology for apportioning

the level of impairment in workers’ compensation cases involving preexisting conditions.

Dr. Bailey, in her rating of the respondent’s whole person impairment, subtracted the

preexisting impairment at the end of the process after applying Rule 20. The method

utilized by Dr. Guberman, and adopted by the OOJ, was to deduct any apportionment for

preexisting impairment from the respondent’s whole person impairment as determined

under the AMA Guides or range of motion model earlier in the process and then

determine the final permanent partial disability award under Rule 20. SWVA contends on

appeal that pursuant to prior decisions of this Court and a plain reading of W. Va. Code §



                                            6

23-4-9b, the proper method of allocation is to subtract the preexisting impairment last

after applying Rule 20, not before applying Rule 20.



             This Court agrees with SWVA. We have rejected Dr. Guberman’s

methodology of allocating preexisting injuries in several recent memorandum decisions.4

For example, in Varney v. Brody Mining LLC, No. 11-1483, 2014 WL 2619508 (W. Va.

June 11, 2014) (memorandum decision), the claims administrator held the claim

compensable for sprain/strain of the neck and contusion of multiple sites and granted the

claimant a 3% PPD award. The OOJ reversed the claims administrator’s decision and

granted an 8% PPD award in addition to a previous 5% PPD award. In doing so, the OOJ

relied on a recommendation of Dr. Guberman in which he deducted the claimant’s prior

PPD award from his range of motion impairment rating prior to utilizing Rule 20.



             The BOR concluded that the OOJ erred in relying on Dr. Guberman’s

recommendation. The BOR credited the recommendation of Dr. Randall L. Short who

concluded that the deduction of prior PPD awards should be made after an evaluator has

applied Rule 20. Dr. Short deducted the petitioner’s prior 5% PPD award from the WPI

and recommended that the claimant receive a 3% PPD award. The BOR concluded that


      4
        Pursuant to Rule 21(e) of the Rules of Appellate Procedure, in part,
“[m]emorandum decisions may be cited in any court or administrative tribunal in this
State.”


                                            7

the deduction of prior PPD awards should be performed after an evaluator applied Rule

20 and reinstated the claims administrators decision granting the claimant a 3% PPD

award. This Court agreed with the reasoning and conclusions of the BOR and affirmed

the Board’s decision. See also Blair v. Mason Mining, LLC, No. 11-0537, 2014 WL

443367 (W. Va. February 4, 2014) (memorandum decision); Preece v. Health Mgm.t

Assocs. of WV, Inc., No. 11-1749, 2014 WL 485923 (W. Va. February 6, 2014)

(memorandum decision); Boone v. SWVA, Inc., No. 12-0221, 2014 WL 2619520 (W. Va.

June 11, 2014) (memorandum decision); Lowes Home Centers, Inc. v. Ramsey, No. 12­

0752, 2014 WL 2619523 (W. Va. June 11, 2014) (memorandum decision); Kimble v.

UCB, No. 11-1685, 2014 WL 2619515 (W. Va. June 11, 2014) (memorandum decision);

Lewis v. Laurel Coal Corp., No. 12-0354, 2014 WL 2619521 (W. Va. June 11, 2014)

(memorandum decision); McClure v. Bluestone Coal Co., No. 13-0392, 2014 WL

2922795 (W. Va. June 27, 2014) (memorandum decision); Shreves v. Town of Rivesville,

No. 11-1463, 2014 WL 4977102 (W. Va. October 3, 2014) (memorandum decision);

Manyley v. Patriot Coal Co., No. 13-0509, 2014 WL 5258311 (W. Va. October 15, 2014)

(memorandum decision); Whitt v. Alcan Rolled Products-Ravenswood, LLC, No. 13­

0643, 2014 WL 5326561 (W. Va. October 20, 2014) (memorandum decision); Roberts v.

Roberts, No. 13-0867, 2014 WL 5822656 (W. Va. November 10, 2014) (memorandum

decision); Young v. Heartland Emp’t Servs., LLC, No. 13-1169, 2014 WL 6839394 (W.

Va. December 3, 2014) (memorandum decision); Schultz v. Heartland Publ’ns, No. 13­

1035, 2015 WL 3513887 (W. Va. June 1, 2015) (memorandum decision); Martin v.


                                         8

Magnum Coal Co., No. 13-1026, 2015 WL 4546132 (W. Va. July 27, 2015)

(memorandum decision); and Thomas v. Pine Ridge Coal Co., LLC, No. 14-1194, 2015

WL 5446914 (W. Va. September 16, 2015) (memorandum decision).



              We find that the doctrine of stare decisis supports our decision in this case.

This Court has held:

                     [a]n appellate court should not overrule a previous
              decision recently rendered without evidence of changing
              conditions or serious judicial error in interpretation sufficient
              to compel deviation from the basic policy of the doctrine of
              stare decisis, which is to promote certainty, stability, and
              uniformity in the law.

Syl. pt. 2, Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). We discern

no changing conditions or serious judicial error in interpretation sufficient to compel

deviation from our recent memorandum decisions disapproving of Dr. Guberman’s

methodology at issue in this case.



              This Court’s recent memorandum decisions are consistent with the plain

language of W. Va. Code § 23-4-9b (2003), which is the applicable statute in this case.

The pertinent language of W. Va. Code § 23-4-9b states:

                     Where an employee has a definitely ascertainable
              impairment resulting from an occupational or a
              nonoccupational injury, disease or any other cause, whether
              or not disabling, and the employee thereafter receives an
              injury in the course of and resulting from his or her
              employment, unless the subsequent injury results in total
              permanent disability within the meaning of section one [§ 23­

                                             9
             3-1], article three of this chapter, the prior injury, and the
             effect of the prior injury, and an aggravation, shall not be
             taken into consideration in fixing the amount of comensation
             allowed by reason of the subsequent injury. Compensation
             shall be awarded only in the amount that would have been
             allowable had the employee not had the preexisting
             impairment.

It is clear from this language, and we hold, that the purpose of W. Va. Code § 23-4-9b

(2003) is to disallow any consideration of any preexisting definitely ascertainable

impairment in determining the percentage of permanent partial disability occasioned by a

subsequent compensable injury, except in those instances where the second injury results

in total permanent disability within the meaning of W. Va. Code § 23-3-1 (2005).5



             Dr. Guberman’s methodology is not consistent with the purpose and

language of W. Va. Code § 23-4-9b. Both Dr. Bailey and Dr. Guberman found a

diagnoses-based 12% whole person impairment under the AMA Guides and both doctors

agreed that at least some portion of Mr. Birch’s overall lumbar impairment is attributable


      5
         In the recent case of Gill v. City of Charleston, ___ W. Va. ___, 783 S.E.2d 857
(2016), this Court dealt with the issue of preexisting aggravating injuries. In syllabus
point 3 of Gill, we held:

                     A noncompensable preexisting injury may not be
             added as a compensable component of a claim for workers’
             compensation medical benefits merely because it may have
             been aggravated by a compensable injury. To the extent that
             the aggravation of a noncompensable preexisting injury
             results in a discreet new injury, that new injury may be found
             compensable.


                                           10

to a non-compensable degenerative condition. However, unlike Dr. Bailey, Dr.

Guberman found that the restrictions in the respondent’s various ranges of motion were

valid and reproducible and not pain-restricted. Dr. Guberman found a total of 13%

impairment in various range of motion restrictions, and he allocated one-half of the

impairment for these restrictions to claimant’s pre-existing condition and rounded 6.5%

up to 7%. Combining the diagnosed-based 12% WPI under the AMA Guides with the

remaining 7% range of motion impairment, Dr. Guberman found Mr. Birch to have a

combined total of 18% WPI. Because this percentage falls beyond the allowed range for

Rule 20, he reduced the final rating to 13%. Significantly, this is the same maximum

award to which the respondent would have been entitled whether or not he had a

preexisting condition. Such a result is at odds with the purpose and language of W. Va.

Code § 23-4-9b, which is to disallow any consideration of any preexisting definitely

ascertainable impairment in arriving at the percentage of disability occasioned by a

subsequent injury. Therefore, Dr. Guberman’s methodology in determining the

respondent’s permanent partial disability in this case is deemed incorrect.



              This Court likewise finds that the OOJ’s rationale for choosing Dr.

Guberman’s recommendation over that of Dr. Bailey is erroneous. In adopting Dr.

Guberman’s report as the most reliable and accurate assessment of the respondent’s

permanent partial disability in this claim, the OOJ reasoned that “impairment and

compensation are not synonymous.” The OOJ explained that


                                            11

             [i]mpairment is a medical assessment based upon the AMA
             Guides, while permanent partial disability is a legal measure
             of the amount of compensation to which the claimant is
             entitled. According to the clear language of the statute, W.
             Va. Code § 23-4-9b provides for the apportionment of
             impairment related to a pre-existing injury, not the
             apportionment of permanent partial disability.



             In so reasoning, however, the OOJ misapprehended the applicable law

regarding the nature of permanent partial disability awards in West Virginia Workers’

Compensation law. According to W. Va. Code § 23-4-6(i) (2003), in part,

                    For the purposes of this chapter, with the exception of
             those injuries provided for in subdivision (f) of this section
             and in section six-b [§ 23-4-6b] of this article, the degree of
             permanent disability other than permanent total disability
             shall be determined exclusively by the degree of whole body
             medical impairment that a claimant has suffered. . . . Once the
             degree of medical impairment has been determined, that
             degree of impairment shall be the degree of permanent partial
             disability that shall be awarded to the claimant.

It is well-settled that “[w]orkers’ Compensation statutes dealing with the same subject

matter are to be read in pari materia.” Nelson v. Merritt, 176 W. Va. 485, 489 n.5, 345

S.E.2d 785, 788 n.5 (1985) (citation omitted). When W.Va. Code §§ 23-4-9b and -6(i)

are read together, these two statutes indicate that a claimant’s PPD award is based upon

the claimant’s whole-body medical impairment. This means that for the purpose of

compensating a claimant only in the amount that would have been allowable had the

claimant not had the preexisting impairment pursuant to W. Va. Code § 23-4-9b, there is

no legal distinction between a claimant’s degree of medical impairment and his or her


                                           12

disability award. Therefore, we find that the OOJ’s decision drawing a distinction

between the terms “impairment” and “disability” herein is erroneous as a matter of law.



              In light of the foregoing, we hold that in fixing the amount of a permanent

partial disability award for a compensable injury suffered by a workers’ compensation

claimant who has a noncompensable preexisting definitely ascertainable impairment, the

correct methodology pursuant to W. Va. Code § 23-4-9b (2003) is to deduct the

impairment attributable to the preexisting injury from the final whole person impairment

rating as determined under West Code of State Rules § 85-20.



              Dr. Bailey’s methodology in determining the respondent’s PPD award

conforms to our holding above. Dr. Bailey found that Mr. Birch has a 12% impairment

under Rule 20. Dr. Bailey then apportioned 4% of Mr. Birch’s final impairment to his

preexisting condition leaving Mr. Birch with a final impairment rating of 8% for his

compensable injury. This Court’s reading of the OOJ decision indicates that the OOJ

rejected Dr. Bailey’s report primarily because of the OOJ’s legal finding that the

apportionment for preexisting impairment should be made from Mr. Birch’s WPI as

determined under the AMA Guides and range of motion model, not from the final PPD

rating as determined under Rule 20. As indicated above, the OOJ’s legal finding

constitutes error.




                                           13

                                  IV. CONCLUSION

             Based on the foregoing, this Court finds that the April 18, 2014, final

decision of the BOR that affirmed the OOJ’s decision is clearly the result of an erroneous

conclusion of law. Accordingly, we reverse the decision of the BOR and reinstate the

claims administrator’s order of November 15, 2011, granting the respondent an 8% PPD

award.

                                                                                Reversed.




                                           14

