                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
JERRY A. ROTENBERRY, JR,                                                           January 25, 2018
                                                                             EDYTHE NASH GAISER, CLERK
Claimant Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

vs.)   No. 17-0673 (BOR Appeal No. 2051812)
                    (Claim No. 2014007771)

WELCH EMERGENCY HOSPITAL,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Jerry A. Rotenberrry Jr., by Jerome McFadden, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Welch Emergency
Hospital, by Lisa Warner Hunter, its attorney, filed a timely response.

        The issue on appeal is the award of permanent partial disability benefits. On August 10,
2015, the claims administrator awarded 7% permanent partial disability. The Office of Judges
reversed the claims administrator in its February 2, 2017, Order and granted 12% permanent
partial disability. The Order was reversed and vacated by the Board of Review on July 3, 2017,
and the 7% permanent partial disability award granted by the claims administrator was
reinstated. 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.

        Jerry Rotenberry worked for Welch Community Hospital as a construction worker and
plumber for thirty-one years. On May 26, 2013, he alleged he sustained occupational injuries to
his wrists, fingers, hands, and arms due to installing commercial water heaters and plumbing
copper pipe and valve frames while using pipe wrenches, crescent wrenches, drills, and other
tools. On July 10, 2013, Robert Kropac, M.D., diagnosed bilateral carpal tunnel syndrome with a
ten-year history of carpal tunnel syndrome. The claims administrator held the claim compensable
for bilateral carpal tunnel syndrome on November 26, 2013.

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        Mr. Rotenberry underwent bilateral carpal tunnel releases in the summer of 2014 and had
successfully returned to work by that September. He continued to work until January of 2015
when he retired. Prasadarao Mukkamala, M.D., performed an independent medical evaluation of
Mr. Rotenberry on August 3, 2015, and prepared his written report the next day. Mr. Rotenberry
told Dr. Mukkamala that he had occasional numbness in his hands and that they felt weak and
tired. Dr. Mukkamala noted Mr. Rotenberry’s history of diabetes and obesity, as well as his long
standing diagnosis of bilateral carpal tunnel syndrome. Dr. Mukkamala diagnosed status post­
surgical release of bilateral carpal tunnel syndrome with a good result. He assessed 3.5% whole
person impairment for each hand for a total of 7% whole person impairment.

        The claims administrator granted Mr. Rotenberry an award of 7% permanent partial
disability on August 10, 2015. Bruce Guberman, M.D., performed an independent medical
evaluation on March 1, 2016. He noted Mr. Rotenberry first experienced numbness, tingling, and
pain in his hands thirteen to fifteen years ago, when he was diagnosed with bilateral carpal tunnel
syndrome. According to Mr. Rotenberry, the carpal tunnel releases only partially improved his
symptoms as he continued to experience bilateral numbness and tingling. Dr. Guberman
diagnosed bilateral carpal tunnel syndrome, status post carpal tunnel release. He assessed 9%
whole person impairment for the left wrist and 6% whole person impairment for the right wrist
for a total of 14% whole person impairment.

         Dr. Mukkamala prepared a supplemental report on September 28, 2016, after reviewing
the report of Dr. Guberman. Dr. Mukkamala disagreed with Dr. Guberman’s assessment because
Mr. Rotenberry was fifty-five years of age, significantly obese, and had a history of diabetes. Mr.
Rotenberry was six feet, one and a half inches tall and weighed 332 pounds. Dr. Mukkamala
opined that obesity and diabetes both contribute to carpal tunnel syndrome and, therefore, there
were external factors present in relation to the causation of Mr. Rotenberry’s carpal tunnel
syndrome. Dr. Mukkamala noted that Mr. Rotenberry returned to work six weeks after the
August 2014, surgery for his right hand and worked for four and a half months before deciding to
retire. Dr. Guberman’s evaluation of Mr. Rotenberry took place more than a year after he retired.
In Dr. Mukkamala’s opinion, Dr. Guberman erred when he attributed the symptoms described by
Mr. Rotenberry to the bilateral carpal tunnel syndrome, considering his diabetes and obesity. The
14% impairment rating assessed by Dr. Guberman was based on exaggerated symptoms.
Additionally, the symptoms should be attributed to many factors, not just the claim. Dr.
Mukkamala opined that his own assessment of 7% impairment was quite liberal, as he did not
apportion any of the impairment to obesity and diabetes.

        On October 10, 2016, Marsha Bailey, M.D., performed an independent medical
evaluation. Mr. Rotenberry told her he had constant numbness and pain in his wrists. She noted
he stopped working in January of 2015 due to chronic lower back pain from a March 2014
injury. He had a fifteen-year history of bilateral carpal tunnel symptoms, as well as a history of
diabetes, hypertension, and obesity. Dr. Bailey assessed 7% impairment for bilateral carpal
tunnel syndrome and apportioned 6% to Mr. Rotenberry’s uncontrolled diabetes and morbid
obesity. She also opined Dr. Guberman’s failure to apply West Virginia Code of State Rules §
85-20 (2006) rendered his report invalid.

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        On February 2, 2017, the Office of Judges reversed the claims administrator’s award of
7% permanent partial disability and granted a 12% permanent partial disability award. It
determined that the evidence showed that no apportionment between occupational and non-
occupational impairment should be made based on Mr. Rotenberry’s thirty-one-year employment
and his job duties. Moreover, the claim had been held compensable for carpal tunnel syndrome.
The Office of Judges then found the impairment assessed by Dr. Guberman to be the most
persuasive. It reduced the 9% impairment for the left wrist to 6% based on West Virginia Code
of State Rules § 85-20. The Office of Judges then determined that Mr. Rotenberry was entitled to
12% whole person impairment for the bilateral carpal tunnel syndrome.

        In its July 3, 2017, decision, the Board of Review reversed and vacated the Office of
Judges’ Order and reinstated the 7% permanent partial disability award. It found that the Office
of Judges’ award of 12% permanent partial disability was not recommended by any of the
physicians. It also determined “the Commissioner is to make permanent partial disability awards
solely on the basis of the doctor’s impairment evaluation.” Repass v. Workers’ Comp. Div., 212
W. Va. 86, 569 S.E.2d 162 (2002). Additionally, in Magnatech Industrial Services v. York, No.
14-0386, 2015 WL 249263 (W.Va. Jan. 15, 2015)(memorandum decision), this Court reversed
an order that similarly reduced an impairment rating to comply with West Virginia Code of State
Rules § 85-20. The Board of Review found Dr. Mukkamala’s assessment of 7% impairment to
be the most credible and reliable. Therefore, it determined the claim administrator’s award of 7%
permanent partial disability should have been affirmed.

        After review, we agree with the Board of Review. West Virginia Code of State Rules §
85-20-64.5 provides that “an injured worker who can otherwise show entitlement to a permanent
partial disability award for carpal tunnel syndrome shall be eligible to receive a permanent partial
disability award of 0%-6% in each affected hand.” Dr. Guberman assessed 9% impairment for
the right hand. However, he failed to reduce the impairment to comply with the West Virginia
Code of State Rules. Dr. Guberman’s failure to reduce the impairment he assessed to comply
with the West Virginia Code of State Rules may not be remedied by the Office of Judges.
Because Dr. Guberman’s assessment of impairment did not comply with West Virginia Code of
State Rules § 85-20, it was not reliable. Therefore, the Office of Judges erred when it relied on
Dr. Guberman’s opinion to award permanent partial disability benefits.

        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.




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ISSUED: January 25, 2018

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISSENTING:
Justice Robin J. Davis




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