                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 1, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ALAN R. LOUGH,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0971 (BOR Appeal No. 2049210)
                    (Claim No. 2011000654)

UNITED FABRICATING, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Alan R. Lough, by Jonathan C. Bowman, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. United Fabricating, Inc., by
Matthew L. Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 25, 2014, in
which the Board affirmed a January 17, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s May 31, 2012,
decision granting Mr. Lough a 0% 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. Lough was working for United Fabricating, Inc., when he was diagnosed with carpal
tunnel syndrome. The claim was held compensable for bilateral carpal tunnel syndrome. Mr.
Lough underwent a right carpal tunnel syndrome release surgery on February 14, 2012, and a left
carpal tunnel syndrome surgery on March 2, 2012. On April 16, 2012, Mr. Lough returned to
work in regular duty capacity. Mr. Lough had three independent medical evaluations. First, Mr.
Lough reported to Mark E. Baratz, M.D., on May 7, 2012, that, following the surgeries, his
numbness and tingling was resolved. Dr. Baratz found the bilateral carpal tunnel syndrome had
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resolved with no functional residual impairment. Then, ChuanFang Jin, M.D., noted that Mr.
Lough did not report any symptoms of carpal tunnel syndrome or any dysfunction with his
hands. Dr. Jin determined that Mr. Lough’s carpal tunnel syndrome’s symptoms had completely
resolved after the surgeries. In September of 2012, Bruce Guberman, M.D., found that Mr.
Lough’s symptoms had improved but that he still had mildly persistent signs and symptoms. Dr.
Guberman opined that Mr. Lough had 12% whole person impairment. Mr. Lough filed an
application requesting a permanent partial disability award. On May 31, 2012, the claims
administrator granted a 0% permanent partial disability award based on the report of Dr. Baratz.

        The Office of Judges affirmed the claims administrator’s decision and found Mr. Lough
has 0% impairment as a result of resolved bilateral carpal tunnel syndrome. The Board of
Review affirmed the Order of the Office of Judges. On appeal, Mr. Lough disagrees and asserts
that he is entitled to a 12% permanent partial disability award based on Dr. Guberman’s credible
report. United Fabricating, Inc., maintains that Dr. Baratz and Dr. Jin both reported Mr. Lough’s
symptoms had resolved. United Fabricating, Inc., further maintains that the Office of Judges and
the Board of Review both reliably found that the evidence establishes Mr. Lough had a
successful recovery and resolution of symptoms following his covered carpal tunnel syndrome
release procedures and has no permanent impairment as a result of carpal tunnel syndrome.

        The Office of Judges noted that Dr. Jin found 0% impairment for the surgically treated
carpal tunnel syndrome under Table 15 of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment, (4th ed. 1993) since no neurological deficit was detected
and 0% under Table 16 of the American Medical Association’s Guides since there are no signs
or symptoms of active disease. The reports of Dr. Jin and Dr. Baratz both recommended 0%
impairment. The Office of Judges concluded that a preponderance of the evidence shows that
Mr. Lough’s symptoms of carpal tunnel syndrome completely resolved after his release
surgeries, as reported by Mr. Lough in the reports of Dr. Baratz and Dr. Jin. Therefore, the
Office of Judges found Mr. Lough has 0% impairment as a result of his resolved bilateral carpal
tunnel syndrome.

       The Board of Review agreed with the Office of Judges. This Court agrees with the
conclusions of the Board of Review and the reasoning of the Office of Judges. Dr. Jin erred in
using both Table 15 and Table 16 of the American Medical Association’s Guides in her
impairment recommendation. However, Dr. Baratz’s report is credible, and he properly used the
American Medical Association’s Guides. Dr. Baratz concluded that Mr. Lough’s carpal tunnel
syndrome resolved after his carpal tunnel release surgeries. Dr. Baratz even noted that Mr.
Lough stated that his numbness and tingling resolved after the surgeries and that he was able to
return to work at full duty on April 16, 2012. Dr. Guberman’s recommendation of a 12%
impairment rating was excluded properly because it was an anomaly among all of the reports and
because he failed to apply West Virginia Code of State Rules § 85-20 (2006).

        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.
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                                        Affirmed.
ISSUED: June 1, 2015

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




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