                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                                 May 14, 2013

                                                                            RORY L. PERRY II, CLERK

HERBERT WENDLING,                                                         SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0975	 (BOR Appeal No. 2045355)
                   (Claim No. 2008037017)

YELLOW TRANSPORTATION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Herbert Wendling, by William B. Gerwig III, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Yellow Transportation, Inc., by
Patricia E. McEnteer, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 8, 20011, in which
the Board affirmed a November 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 29, 2009,
decision granting the claimant 4% permanent partial disability for right knee strain and right
knee medial and lateral meniscal tears, and the claims administrator’s June 1, 2009, denial of Mr.
Wendling’s request to add right knee degenerative joint disease as a compensable component of
the injury. 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. Wendling was employed as a truck driver for Yellow Transportation, Inc. On March
27, 2009, he caught his foot on a piece of steel while walking on a loading dock. He twisted his
right knee, stepped backward, and hit his right knee against a pipe. Mr. Wendling was granted a
4% permanent partial impairment award for right knee strain and right knee medial and lateral
meniscal tears. Mr. Wendling then requested the addition of degenerative joint disease as a
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compensable component of his injury. The claims administrator denied Mr. Wendling’s request,
leading to this appeal.

        The Office of Judges affirmed the claims administrator’s decision. The Office of Judges
found, based on a preponderance of the evidence, that the degenerative disease in Mr.
Wendling’s right knee pre-existed his compensable injury. Although the Office of Judges
considered a report by Dr. Guberman, who attributed an additional 4% whole body impairment
from Mr. Wendling’s injury, the Office of Judges found that Dr. Guberman had not considered
pre-existing degenerative changes in Mr. Wendling’s knee. Instead, the Office of Judges based
this determination on the evaluation by Dr. Bachwitt, which considered a range of causes besides
Mr. Wendling’s work. Dr. Bachwitt believed that the degenerative changes, accounting for the
additional 4% impairment rating in Dr. Guberman’s report, would take years to develop and,
therefore, were not related to Mr. Wendling’s compensable injury. The Office of Judges found
that the damage in Mr. Wendling’s knee was the result of degenerative changes and not the
work-related injury.

       The Board of Review adopted the findings of the Office of Judges and affirmed its Order
on June 8, 2011.

       We agree with the Office of Judges’ findings and reasoning. The preponderance of the
evidence weighs in favor of finding that the additional 4% impairment recommended by Dr.
Guberman for Mr. Wendling’s degenerative joint disease pre-existed his compensable injury and
was not work-related. The Board of Review was not clearly wrong to affirm the Office of Judges
Order.

        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: May 14, 2013

CONCURRED IN BY:
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum



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