                              STATE OF WEST VIRGINIA


                           SUPREME COURT OF APPEALS
                                                                                      FILED
                                                                                    August 2, 2017
TAMMY PARSONS,                                                                   RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                     SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA


vs.)   No. 17-0051 (BOR Appeal No. 2051501)
                    (Claim No. 2014021465)

BIG SANDY FURNITURE, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Tammy Parsons, by Otis R. Mann Jr., her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Big Sandy Furniture, Inc., by Lisa
Warner Hunter, its attorney, filed a timely response.

        The issue presented in the instant appeal is the amount of permanent partial disability
resulting from a compensable injury. On July 7, 2015, the claims administrator entered an order
granting no permanent partial disability award. The Workers’ Compensation Office of Judges
affirmed the claims administrator’s decision on July 29, 2016. This appeal arises from the Board
of Review’s Final Order dated December 16, 2016, in which the Board affirmed the Order of the
Office of Judges. 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. Parsons, an inventory clerk, filed a Report of Injury stating that she sustained injuries
to her left hip, left side of her back, right arm and left shoulder on January 24, 2014, when she
fell on a ladder. Ms. Parsons reported her left shoulder struck a box of Sauder entertainment
systems so forcefully that she dented the box. She immediately sought medical treatment at
MedExpress Urgent Care, and it was determined that she had sustained an occupational injury.
Ms. Parsons sought treatment with David Felder, M.D., on February 4, 2014, for her left
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shoulder pain. Dr. Felder reported that x-rays of the shoulder, elbow and wrist did not show any
evidence of fractures or dislocations. He stated that Ms. Parsons’s discomfort had improved. Dr.
Felder’s assessment of Ms. Parsons’s condition was a diagnosis of a sprained left shoulder and
she was referred to physical therapy. Dr. Felder stated that Ms. Parsons may return to work on
February 5, 2014, with no lifting or pulling with the upper left extremity.

        On February 10, 2014, the claims administrator approved the claim for dislocation of the
left shoulder. Ms. Parsons was eligible for temporary total disability benefits from January 25,
2014, through February 4, 2014. On February 11, 2014, Ms. Parsons had her initial physical
therapy evaluation at MedCare Therapy Center. On February 21, 2014, Ms. Parsons returned to
MedCare for her fifth physical therapy session and reported she was doing much better. Ms.
Parsons was ultimately released to return to work on February 25, 2014, with no restrictions.

        Ms. Parsons was treated by Timothy Deer, M.D., on September 17, 2014, with a chief
complaint of low back pain and bilateral leg pain. Dr. Deer stated that an MRI dated May 6,
2014, showed that Ms. Parsons suffers from a bulging disc at L5-S1, degenerative change with
reactive endplate changes and mild bilateral neural foraminal narrowing. Dr. Deer’s assessments
were lumbar disc degeneration, lumbar spondylosis and lumbar radiculopathy. He recommended
Ms. Parsons remain off work for six to eight weeks, and ordered bilateral lumbar facet joint
injections to treat the lumbosacral spondylosis.

         In an independent medical report dated June 25, 2015, Marsha Bailey, M.D., diagnosed
Ms. Parsons with chronic lumbar pain without true lumbar radiculopathy. Dr. Bailey noted that
her left shoulder strain and contusion resolved uneventfully with the help of five physical therapy
sessions. Dr. Bailey found Ms. Parsons’s shoulder examinations to be completely normal, with
full range of motion measurements, asymptomatic and equal to her uninjured right shoulder. For
the fully resolved left shoulder, Dr. Bailey assessed 0% whole person impairment. In regard to
lumbar complaints, Ms. Parsons was assessed at 5% whole person impairment under the Range
of Motion method of the American Medical Association, Guides to the Evaluation of Permanent
Impairment, (4th ed. 1993). She found that Ms. Parsons is classified under Lumbar Category I of
West Virginia Code of State Rules §85-20-C (2006) with the impairment range of 0% whole
person impairment. Because the Range of Motion impairment of 5% does not fall within the
accepted range, Dr. Bailey adjusted the lumbar impairment to 0% pursuant to West Virginia
Code of State Rules § 85-20-1 (2006). On July 7, 2015, the claims administrator granted Ms.
Parsons no permanent partial disability award based on the medical report of Dr. Bailey.

        Bruce A. Guberman, M.D., submitted an independent medical examination dated
November 18, 2015. Dr. Guberman found that Ms. Parsons’s symptoms had improved, but had
not entirely resolved. His impression was chronic post-traumatic strain of the lumbar spine, with
a spinal cord stimulator placement, and chronic post-traumatic strain of the left shoulder. Dr.
Guberman found 2% whole person impairment for the left shoulder. Dr. Guberman also found
5% whole person impairment for the lumbar spine.



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        An Addendum Report was prepared by Dr. Bailey on January 25, 2016. Dr. Bailey stated
that she reviewed Dr. Guberman’s assessment and believes that her impairment recommendation
is a more accurate reflection of Ms. Parsons’s impairment as a result of her compensable injury.
Dr. Bailey stated that Dr. Guberman assigned impairment ratings for unrelated, preexisting and
non-compensable conditions.

        On July 29, 2016, the Office of Judges affirmed the granting of no permanent partial
disability award for injuries in the claim. The Office of Judges deemed Dr. Bailey’s assessment
to be the most persuasive report on the issue of permanent partial disability. Dr. Bailey noted that
Ms. Parsons’s MRI dated May 6, 2014, revealed only degenerative findings without any acute
injury related changes or disc herniation. Dr. Bailey also noted that Ms. Parsons has a history of
back pain and had previously been diagnosed with degenerative disc disease of the lumbar spine,
lumbar spondylosis and lumbar radiculopathy, which were all pre-existing, unrelated to the
compensable injuries and non-compensable diagnoses. Given Ms. Parsons’s history of lumbar
pain, the Office of Judges was not persuaded by the 5% lumbar rating by Dr. Guberman. In fact,
the Office of Judges stated that it appears that Dr. Guberman did not consider Ms. Parsons’s
condition regarding the lumbar spine prior to the injury in this claim. Likewise, the Office of
Judges found Dr. Bailey’s assessment of the spinal cord stimulator to be the most persuasive
evidence of true impairment. Dr. Bailey did not find any whole person impairment relating to the
spinal cord stimulator because it was placed to treat Ms. Parsons’s preexisting conditions, and
the scar arose out of treatment for non-compensable diagnoses.

        The Office of Judges concluded that Ms. Parsons failed to show that the claims
administrator erred in granting no permanent partial disability award for injuries in her claim.
The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges
and affirmed its Order on December 16, 2016. We agree with the reasoning and conclusions of
the Office of Judges as affirmed by the Board of Review.

        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: August 2, 2017

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


DISSENTING:

Justice Menis E. Ketchum





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