                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                  FILED
                                                                                 October 26, 2016
                                                                              RORY L. PERRY II, CLERK
LISA C. DANIEL,                                                             SUPREME COURT OF APPEALS
Claimant Below, Petitioner                                                      OF WEST VIRGINIA



vs.)   No. 15-0214 (BOR Appeal No. 2049804)
                   (Claim No. 2013008014)


JAY ENTERPRISES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Lisa C. Daniel, by Stephen P. New, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Jay Enterprises, Inc., by Steven K.
Wellman, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 25, 2015, in
which the Board affirmed a September 22, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 21, 2013,
decision to grant no additional 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. Daniel, a housekeeper for Jay Enterprises, Inc., injured her back while she was
making a bed on August 29, 2012. She filed for benefits and her claim was held compensable for
a lumbar sprain by the claims administrator on October 3, 2012. On October 5, 2012, Ms. Daniel
underwent a lumbar spine MRI which revealed early and minimal degenerative disc disease at
L4-L5. There was no evidence of a disc herniation. There was a mild broad-based disc bulge at
L4-5 that did not cause significant canal or foraminal encroachment.
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        An independent medical report dated December 18, 2012, showed that Ms. Daniel was
evaluated by Jerry Scott, M.D. Dr. Scott diagnosed a lumbar sprain superimposed upon pre­
existing degenerative disease of the lumbar region. Dr. Scott stated there were enough
degenerative disease findings on the MRI to explain Ms. Daniel’s current complaints. Dr. Scott
stated it appeared she has degenerative disease which was “awakened” by the August 29, 2012,
event. Dr. Scott found that Ms. Daniel had reached her maximum degree of medical
improvement. Dr. Scott found she suffered from 6% whole person impairment related to the
injury. Based upon Dr. Scott’s report, and her previous permanent partial disability award of
13%, the claims administrator granted Ms. Daniel no additional permanent partial disability.

       On August 15, 2013, an independent medical evaluation report from Bruce Guberman,
M.D., was issued. Dr. Guberman diagnosed an acute and chronic lumbosacral sprain. Dr.
Guberman found that Ms. Daniel had reached her maximum degree of medical improvement. Dr.
Guberman found that she sustained 5% whole person impairment based upon his decision to
place her in Lumbar Category II-B in Table 75 of the American Medical Association’s Guides to
the Evaluation of Permanent Impairment (4th ed. 1993). Using Table 81 of the American
Medical Association’s Guides, Dr. Guberman found 9% impairment for range of motion
abnormalities in flexion and extension of the lumbar spine. From Table 82 of the American
Medical Association’s Guides, Dr. Guberman found 2% impairment for range of motion
abnormalities in lateral flexion of the lumbar spine. He opined that the 11% impairment for the
range of motion abnormalities combined with the 5% impairment from Table 75 indicated she
sustained 15% whole person impairment from the injury. Because she had already received a
13% permanent partial disability award for the lumbar spine, Dr. Guberman subtracted the
previous award from his impairment rating to reach 2% whole person impairment. Dr. Guberman
then placed her in Category II of West Virginia Code of State Rules § 85-20-Table C (2006),
which has an allowable range of 5% to 8% impairment. Because she was below the 5%
impairment he adjusted her impairment rating from 2% to 5% and recommended she receive an
extra 5% permanent partial disability award above the 13% previously awarded.

        On May 19, 2014, an independent medical evaluation report from Marsha Bailey, M.D.,
was issued. Dr. Bailey diagnosed chronic lower back pain without true radiculopathy. Dr. Bailey
stated that Ms. Daniel may have sustained a simple sprain to her lumbar spine on August 29,
2012, and that it has long since resolved. She opined that Ms. Daniel’s ongoing complaints could
not be explained through her compensable injury. Dr. Bailey agreed with Dr. Scott that Ms.
Daniel’s ongoing complaints were a result of her degenerative disc disease. Dr. Bailey opined
Ms. Daniels had reached her maximum medical improvement. Like Dr. Guberman, Dr. Bailey
opined that Ms. Daniel fell into Category II-B of Table 75 of the Guides. Dr. Bailey could not
find valid lumbar range of motion measurements because of pain restriction. Dr. Bailey opined
that she fit into Lumbar Category I of West Virginia Code of State Rules § 85-20-Table C for a
total of 0% whole person impairment. Dr. Bailey opined that in her opinion Ms. Daniel has no
permanent impairment as a result of her compensable injury, and Ms. Daniel’s ongoing
complaints are solely a result of her personal risk factors, that is, her degenerative spine
condition aggravated by her obesity.


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        The Office of Judges determined that Ms. Daniel was not entitled to an additional
permanent partial disability award. The Office of Judges concluded that Dr. Guberman
erroneously calculated impairment under the range of motion model by taking into account her
prior permanent partial disability award prior to the application of West Virginia Code of State
Rules § 85-20-Table C. The Office of Judges determined that both Dr. Guberman and Dr. Scott
found that Ms. Daniels fell under Lumbar Spine Category II from West Virginia Code of State
Rules § 85-20-Table C, which has an allowable range of 5% to 8% impairment of the whole
person. Dr. Bailey found Ms. Daniel fell under Lumbar Spine Category I from West Virginia
Code of State Rules § 85-20-Table C, which would equate to 0% impairment. Therefore, the
Office of Judges concluded that all the evaluators’ findings demonstrate that Ms. Daniel would
be awarded no greater than 8% whole person impairment under West Virginia Code of State
Rules § 85-20-Table C. Because the previous 13% award had already fully compensated Ms.
Daniel, the Office of Judges concluded that she was not entitled to any additional permanent
partial disability award. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.

       We agree with the consistent decisions of the Office of Judges and Board of Review. This
Court recently held in Syllabus point three of SWVA, Inc., v. Edward D. Birch, ___ W. Va. ___,
787 S.E.2d 664 (2016), that:
               [i]n fixing the amount of a permanent partial disability award for a
               compensable injury suffered by a workers’ compensation claimant
               who has a noncompensable preexisting definitely ascertainable
               impairment, the correct methodology pursuant to W. Va. Code §
               23–4–9b (2003) is to deduct the impairment attributed to the
               preexisting injury from the final whole person impairment rating as
               determined under West Virginia Code of State Rules § 85-20.

Because the Board of Review adopted a position that is consistent with our jurisprudence and
supported by the evidence, its decision is without error.

        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: October 26, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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