                              STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

DEBORAH PRIET,                                                                          FILED
Claimant Below, Petitioner                                                          November 15, 2019
                                                                                EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
vs.)   No. 18-1023 (BOR Appeal No. 2053073)                                         OF WEST VIRGINIA

                   (Claim No. 2016016622)

NOORINDER, LLC,
Employer Below, Respondent


                              MEMORANDUM DECISION
      Petitioner Deborah Priet, by Counsel Lawrence E. Sherman Jr., appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Noorinder, LLC,
by Counsel Alyssa A. Sloan, filed a timely response.

       The issue on appeal is permanent partial disability. The claims administrator granted no
permanent partial disability award on December 12, 2016. The Office of Judges affirmed the
decision in its May 31, 2018, Order. The Order was affirmed by the Board of Review on October
19, 2018.

        The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Priet, a shelter counselor, was injured in the course of her employment on December
27, 2015, while lifting a box of coffee. The Employees’ and Physicians’ Report of Injury lists the
diagnoses as fracture at the base of the right fifth metacarpal and possible extensor tendon rupture.
A December 31, 2015, treatment note by Kenneth Guida, PA-C, with Orthopedic Excellence,
indicates he diagnosed right fifth metacarpal fracture and placed Ms. Priet in a splint. The claim
was held compensable for fracture of the right fifth metacarpal on January 25, 2016.

       A wrist MRI taken on January 26, 2016, showed low grade tendinopathy/strain in the
extensor carpi ulnaris tendon and a possible triangular fibrocartilage complex tear. There was no
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evidence of an acute fracture line. A treatment note by Mr. Guida the following day indicates he
found that Ms. Priet had no fracture. She did sustain a strain of the triangular fibrocartilage
complex and tendinopathy strain in the extensor carpi ulnaris tendon. Ms. Priet was to undergo
occupational therapy. An EMG was performed on June 1, 2016, and revealed evidence of mild
right ulnar neuropathy, likely at the elbows.

        Treatment notes from Orthopedic Excellence indicate Joseph Cincinnati, D.O.,
recommended surgery on July 6, 2016, due to paresthesia and weakness. He noted that the EMG
showed ulnar neuropathy. On July 8, 2016, Mr. Guida diagnosed extensor carpi ulnaris
tendinopathy, triangular fibrocartilage complex injury, and ulnar neuropathy. Mr. Guida opined
that Ms. Priet was prematurely discharged from occupational therapy, which caused a regression
in her symptoms. On August 9, 2016, Mr. Guida opined that Ms. Priet’s symptoms had worsened
and that she had discoloration and coolness in her right arm. He diagnosed ulnar neuropathy and
likely chronic regional pain syndrome. Mr. Guida disagreed with a report by Marsha Bailey, M.D.,
in which she opined that Ms. Priet’s symptoms were unrelated to the compensable injury.

        In a July 21, 2016, record review, Dr. Bailey stated that she reviewed medical records as
well as surveillance video of Ms. Priet. In the footage, Ms. Priet was seen eating, driving, opening
doors, and putting keys in her pocket, all with her right hand. Dr. Bailey opined that the
compensable fifth metacarpal fracture should have healed within three to four weeks. The
mechanism of injury was not consistent with ulnar neuropathy at the elbow, and Ms. Priet reported
no nerve symptoms until three months after the injury occurred. Dr. Bailey found nonoccupational
risk factors for elbow ulnar neuropathy in the form of obesity and multiple sclerosis. She also
found some symptom magnification.

        Ralph Savagno, M.D., performed an independent medical evaluation on September 7,
2016, in which he noted that Ms. Priet had discoloration in her right hand and that it was cold to
the touch. He noted that the claim was held compensable for fifth metacarpal fracture but that Ms.
Priet did not actually sustain a fracture. He opined that she may have sprained her triangular
fibrocartilage complex. Ms. Priet also showed signs of complex regional pain syndrome. Dr.
Savagno found no signs of ulnar neuropathy on examination and stated that the condition was not
compatible with the mechanism of injury. He opined that Ms. Priet had not reached maximum
medical improvement and that she needed further evaluation. His diagnosis was right wrist sprain
and resulting chronic regional pain syndrome.

        Christopher Martin M.D., performed an independent medical evaluation on November 8,
2016, in which he opined that Ms. Priet never had ulnar neuropathy but did sustain a triangular
fibrocartilage complex strain. She had reached maximum medical improvement. Dr. Martin noted
that surveillance video showed Ms. Priet using her right hand normally. Using the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr.
Martin found 0% impairment. Based on Dr. Martin’s report, the claims administrator granted no
permanent partial disability award on December 12, 2016.



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       Ms. Priet was treated by Shannon Tieman, CRNP, on May 23, 2017. Ms. Tieman evaluated
Ms. Priet for noncompensable conditions. It was noted that she had multiple sclerosis that caused
immobility issues. She also had right leg numbness and chronic nerve pain.

        In an October 19, 2017, independent medical evaluation, Alex Ambroz, M.D., noted that
multiple examiners found that Ms. Priet had weakness, numbness, and temperature changes in her
right hand and wrist. Dr. Ambroz found decreased strength, range of motion, sensation, coloration
and temperature in the right wrist/hand. He felt that Ms. Priet met the criteria for chronic regional
pain syndrome. He also opined that she had a significant impairment as a result of the compensable
injury. Using the American Medical Association’s Guides, Dr. Ambroz assessed 27% permanent
partial disability.

        The Office of Judges affirmed the claims administrator’s decision granting no permanent
partial disability award in its May 31, 2018, Order. The Office of Judges found that Dr. Ambroz’s
report was unreliable. He used Tables 11 and 12 from the American Medical Association’s Guides
for impairment due to pain or sensory deficits and power and mobility deficits resulting from
peripheral nerve disorders. However, right cubital tunnel syndrome, an ulnar nerve condition, was
found to be noncompensable by the Office of Judges on October 5, 2017. Dr. Ambroz also used
Table 13 which concerns impairment due to unilateral sensory or motor deficits of spinal nerves.
The Office of Judges found that the claim was held compensable for fractured fifth metacarpal.
Tables 11, 12, and 13 have no relation to the compensable injury. As Dr. Ambroz assigned a large
amount of impairment from these tables, his report was found to be unreliable. Dr. Martin’s report
was found to be reliable. He determined that Ms. Priet sustained no impairment as a result of the
compensable injury. The Board of Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on October 19, 2018.

       After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Dr. Ambroz reported impairment that has no relation to the
compensable right fifth metacarpal fracture. Accordingly, the report was unreliable.

        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: November 15, 2019

CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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