                              STATE OF WEST VIRGINIA

                                                                                    FILED
                           SUPREME COURT OF APPEALS                             October 15, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
SHEILA PAINTER,                                                                OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0870 (BOR Appeal No. 2048060)
                   (Claim No. 970039219)

APPALACHIAN POWER COMPANY,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Sheila Painter, by William B. Gerwig III, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Appalachian Power Company, by
Henry C. Bowen, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated August 8, 2013, in
which the Board reversed a December 28, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s December 2, 2011,
decision and granted Ms. Painter a 4% permanent partial disability award for her right knee. The
Board of Review reinstated the claims administrator’s decision which granted Ms. Painter a 0%
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 that the Board of Review’s decision is based on a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate
for a memorandum decision rather than an opinion.

       Ms. Painter worked as a human resource manager for Appalachian Power Company. On
January 20, 1997, Ms. Painter injured her right foot, left foot, right knee, and left wrist when she
tripped and fell through a doorway at work. The claims administrator held her claim
compensable. Following this decision, Ms. Painter came under the care of David L. Soulsby,
M.D., who determined that she had a partial tear of the medial and lateral meniscus. Dr. Soulsby
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requested authorization for arthroscopic surgery to repair the right knee, and the claims
administrator authorized the procedure. Dr. Soulsby performed the surgery on June 26, 2000.
Bruce A. Guberman, M.D., then evaluated Ms. Painter and determined that she had 28% whole
person impairment related to her compensable injury. Dr. Guberman specifically found that she
had 6% whole person impairment related to her right leg. This 6% impairment rating included a
5% lower extremity impairment recommendation related to her right knee under Section 3, Table
62 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment
(4th ed. 1993). The Office of Judges granted Ms. Painter a 28% permanent partial disability
award based on Dr. Guberman’s evaluation. Several years later, Christopher Martin, M.D.,
evaluated Ms. Painter and determined that she had 0% whole person impairment related to her
right knee. Dr. Martin found that she had non-compensable bilateral arthritis and attributed all of
her right knee disability to that condition. Dr. Martin noted that Dr. Soulsby had performed
arthroscopic surgery on Ms. Painter’s knee. Dr. Martin, however, did not recommend any
impairment related to this surgery because he incorrectly believed that the surgery had not been
authorized by the claims administrator. On December 2, 2011, the claims administrator granted
Ms. Painter a 0% permanent partial disability award based on Dr. Martin’s evaluation. Dr.
Guberman then evaluated Ms. Painter a second time. He determined that Ms. Painter had 4%
whole person impairment under the American Medical Association’s Guides for abnormal
flexion and extension of the right knee. Dr. Guberman also found that this entire impairment
rating related to the compensable injury because Ms. Painter’s right knee osteoarthritis did not
pre-date the injury. On December 28, 2012, the Office of Judges reversed the claims
administrator’s decision and granted Ms. Painter a 4% permanent partial disability award for her
right knee. The Board of Review reversed the Order of the Office of Judges on August 8, 2013,
and reinstated the claims administrator’s decision, leading Ms. Painter to appeal.

        The Office of Judges concluded that Ms. Painter was entitled to a 4% permanent partial
disability award for her right knee injury. It based this determination on the second evaluation of
Dr. Guberman, which it found was the most persuasive evidence in the record of Ms. Painter’s
whole person impairment related to her right knee. The Office of Judges found that Dr.
Guberman’s impairment rating was consistent with Ms. Painter’s complaints of right knee pain
following the injury and her receipt of treatment related to her knee. The Office of Judges
considered the evaluation of Dr. Martin, but it did not rely on his opinion. The Office of Judges
found that Dr. Martin was mistaken in believing that the claims administrator had not authorized
the June 26, 2000, arthroscopic surgery.

       In reversing the Order of the Office of Judges, the Board of Review concluded that Dr.
Guberman’s 4% impairment recommendation could not be relied upon because Dr. Guberman’s
evaluation did not take into account Ms. Painter’s prior permanent partial disability award. The
Board of Review found that Ms. Painter had been fully compensated for her right knee
impairment and was not entitled to any additional permanent partial disability award.

       The decision of the Board of Review is based on a material misstatement of the
compensation Ms. Painter previously received for her right knee injury. The evidence in the
record demonstrates that Ms. Painter has not been fully compensated for the disability related to
her right knee injury and shows that she is entitled to an additional 2% permanent partial
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disability award. The second evaluation of Dr. Guberman demonstrates that Ms. Painter has 4%
whole person impairment related to her right knee. Ms. Painter previously received a 28%
permanent partial disability award for her compensable injuries based on a prior evaluation
conducted by Dr. Guberman. The 5% lower extremity impairment Dr. Guberman identified in
his evaluation related to Ms. Painter’s knee would amount to a 2% whole person impairment
rating under Section 3, Table 62 of the American Medical Association’s Guides. Ms. Painter
therefore, is entitled to an additional 2% permanent partial disability award, which would bring
the total amount of the award relating to her right knee to 4%. The Office of Judges was justified
in relying on Dr. Guberman’s impairment recommendation instead of Dr. Martin’s because Dr.
Guberman thoroughly evaluated Ms. Painter’s right knee and took into account her disability
resulting from the authorized arthroscopic right knee surgery.

       For the foregoing reasons, we find that the decision of the Board of Review is based on a
material misstatement or mischaracterization of particular components of the evidentiary record.
Therefore, the decision of the Board of Review is reversed and remanded with instructions to
grant Ms. Painter an additional 2% permanent partial disability award for her right knee.

                                                                        Reversed and Remanded.

ISSUED: October 15, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:
Justice Margaret L. Workman

Justice Brent D. Benjamin, disqualified.




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