                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                                April 14, 2016
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
ROBIN STACKPOLE,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0284 (BOR Appeal No. 2049746)
                   (Claim No. 2012012542)

SUN HEALTHCARE,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Robin Stackpole, by J. Thomas Greene Jr., her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review.

       This appeal arises from the Board of Review’s Final Order dated February 25, 2015, in
which the Board affirmed an August 25, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 16, 2013,
decision which granted 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.

        Ms. Stackpole, a certified nursing assistant for Sun Healthcare, was working on October
7, 2011, when she injured her back attempting to lift a patient. Ms. Stackpole experienced back
pain that extended down the right leg as far as the knee. She reported the injury to her supervisor
and finished out her shift. She attempted to work the following day but could not perform her job
duties because she was in too much pain. She was revaluated at the Prompt Care facility at St.
Joseph Hospital where she was diagnosed with an acute myofascial lumbar sprain.


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         Ms. Stackpole reported to Joseph Snead, M.D., who issued an independent medical
evaluation on May 1, 2012. Dr. Snead found evidence of some type of disc degeneration or a
bulging process in the lumbar area. However, without the benefit of an MRI, he opined it would
be difficult to determine at what level the problem was located. Because the pain was in the
upper thigh, he opined the problem is most likely at one of the higher lumbar levels between L2
and L4. Dr. Snead concluded that Ms. Stackpole most likely suffered from an upper lumbar disc
bulge. Using range of motion, he measured 14% whole person impairment. He also found 5%
impairment from Section II-B of Table 75 of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993). He then combined the 14% with the 5%
from Table 75 to reach 18% whole person impairment. Dr. Snead placed Ms. Stackpole in
Category II of Table 15-3 of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (5th ed. 2001), which allowed an impairment rating from 5% to 8%. He
then utilized West Virginia Code of State Rules § 85-20-C (2006) and recommended 8% whole
person impairment for the injury. However, he did not think Ms. Stackpole was at maximum
medical improvement and noted that she was scheduled for lumbar injections. Dr. Snead opined
that if these were carried out in a timely manner, he would expect her to reach maximum medical
improvement around July of 2012.

        In a December 12, 2012, independent medical evaluation, Kelly Agnew, M.D., found no
evidence of atrophy of the right lower extremity to correlate with longstanding weakness. He felt
the work-related injury of October 7, 2011, was now maximally improved with no evidence of
lingering impairment. He stated that Ms. Stackpole had some prior spine complaints, including
the lumbar area, prompting chiropractic care. He agreed with the radiologist that Ms. Stackpole
does not have a disc herniation, an annular tear, or any nerve root compression. He stated that
she had a very mild desiccation with a tiny bulge at L5-S1, which is completely normal and does
not represent an injury. He noted that Ms. Stackpole has no objective muscular tenderness or
spasm. She demonstrated excellent flexibility, although she had to be distracted to exhibit it. Dr.
Agnew also noted a very strong component of non-organicity to her presentation. He found no
ratable impairment. On January 16, 2013, the claims administrator granted a 0% permanent
partial disability award based upon Dr. Agnew’s report.

        On January 31, 2014, an independent medical evaluation from Karl C. Boone, D.C., was
issued. He diagnosed lumbar intervertebral disc displacement without myelopathy, lumbar
radiculitis, lumbosacral strain, and lumbar spondylosis. He opined that Ms. Stackpole had
reached maximum medical improvement with regard to the injury. He placed her in Category II­
B of Table 75 of the 4th edition of the AMA’s Guides for 5% whole person impairment. He
indicated her range of motion findings were invalid and therefore suggested no impairment for
such. He noted that there were no gross neurological deficits in her lower extremities and placed
her in Category II of West Virginia Code of State Rules § 85-20-C. His total assessment was 5%
whole person impairment.

        The Office of Judges affirmed the claims administrator’s decision in its August 25, 2014,
Order. It found Ms. Stackpole failed to show she was permanently and partially disabled as a
result of her compensable injury. The Office of Judges stated that it was not clear from the record
what the claim was held compensable for because the evidence presented consisted of three
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independent medical evaluations. The Office of Judges gleaned from the various reports that
since the early 2000’s, Ms. Stackpole has had back pain, degenerative disc disease, fibromyalgia,
and idiopathic peripheral neuropathy. The Office of Judges also noted that under the standard of
proof it was Ms. Stackpole’s burden to establish her claim. The Office of Judges concluded it
was unclear from the reports what the compensable injuries were and if Ms. Stackpole’s
impairment was attributable to them. As a result, the Office of Judges did not adopt any
independent medical evaluation as persuasive and affirmed the claims administrator’s award of
0% permanent partial disability. The Board of Review adopted the findings of the Office of
Judges and affirmed its Order on February 25, 2015.

        After review, we agree with the consistent conclusions of the Office of Judges and Board
of Review. Three independent medical evaluations have been submitted. From the two
evaluations that found impairment, the connection between the impairment and the compensable
injury was not apparent. It could not be gleaned from the record presented what the compensable
injuries were or how they resulted in impairment. Ms. Stackpole has an extensive history of back
issues, pain, and sensitivity that does not correspond with her organic findings. Because Ms.
Stackpole did not establish the connection between the impairment and the compensable injury,
it was not in error for the Office of Judges and Board of Review to decline to grant a permanent
partial disability award.

        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: April 14, 2016

CONCURRED IN BY:
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING:
Chief Justice Menis E. Ketchum
Justice Margaret L. Workman




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