                              STATE OF WEST VIRGINIA

                                                                                    FILED
                           SUPREME COURT OF APPEALS                             October 20, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
JOHN PELFREY,                                                                  OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0797 (BOR Appeal No. 2047986)
                   (Claim No. 2009084536)

PRITCHARD ELECTRIC COMPANY, INC.,
Employer Below, Respondent


                              MEMORANDUM DECISION
       Petitioner John Pelfrey, by Stephen Paul New, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Pritchard Electric Company, Inc., by
Lisa A. Warner Hunter, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 1, 2013, in which
the Board affirmed a December 13, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s April 14, 2011, decision
which granted Mr. Pelfrey a 0% permanent partial disability award and granted the claimant a
total of a 5% 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.

        Mr. Pelfrey, an electrician, was injured in the course of his employment on March 3,
2009, while installing electrical conduit. The employee’s and physician’s report of injury lists the
diagnoses of neck sprain/strain, shoulder and upper arm sprain/strain, thoracic spine
sprain/strain, and cervical brachial neuritis or radiculitis not otherwise specified. The claim was
held compensable but that decision is not of record. The claims administrator granted Mr. Pelfrey

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a 0% permanent partial disability award on April 14, 2011, based upon an independent medical
evaluation by Richard Sheridan, M.D., which is also not of record.

        A second independent medical evaluation was performed by Bruce Guberman, M.D., on
March 5, 2012. Dr. Guberman indicated Mr. Pelfrey had chronic post-traumatic strain of the
right shoulder and persistent range of motion abnormalities. He also diagnosed acute and chronic
cervical and thoracic spine sprain/strain and determined that Mr. Pelfrey had reached maximum
medical improvement. He assessed 3% impairment for the right shoulder, 7% impairment for the
cervical spine, and 5% impairment for the thoracic spine for a total whole person impairment of
15%. He opined that Dr. Sheridan’s report was unreliable because he failed to adhere to West
Virginia Code of State Rules § 85-20 (2006) and the American Medical Association’s Guides to
the Evaluation of Permanent Impairment, (4th ed. 1993).

        Marsha Bailey, M.D., performed an independent medical evaluation on September 4,
2012, in which she diagnosed right upper extremity cervical radiculitis and right upper extremity
ulnar neuropathy or carpal tunnel syndrome. She also diagnosed chronic mid-thoracic pain.
Reported right hand weakness was determined to most likely be the result of right ulnar
neuropathy and some component of cervical radiculitis. Tremors reported in the right hand were
determined to be unrelated to the compensable injury. Mr. Pelfrey described a catching sensation
in his cervical spine that was found to be the result of degenerative disc disease and degenerative
joint disease which was revealed in a cervical x-ray taken two days after the compensable injury
and an MRI taken two weeks after the injury. Dr. Bailey opined that Mr. Pelfrey sustained
simple sprains and strains to his thoracic and cervical spine as a result of his compensable injury.
The cervical sprain has resolved, and his ongoing symptoms are the result of degenerative disc
and joint disease. His degenerative changes at C6-7, producing moderate neural foraminal
stenosis, are consistent with his right-sided radiculopathy. Mr. Pelfrey’s ulnar neuropathy at the
right elbow was also determined to be unrelated to the compensable injury. It was found to be the
result of obesity and hypothyroidism. He reported no direct trauma to his elbow at the time of his
injury. Dr. Bailey opined that Mr. Pelfrey had reached maximum medical improvement for his
compensable cervical, thoracic, and right shoulder sprains/strains. She assessed 0% cervical
spine impairment, 5% thoracic spine impairment, and 0% right shoulder impairment for a total
whole person impairment of 5%. She stated that Mr. Pelfrey had mild range of motion
abnormalities in his unaffected left shoulder which equated to 2% impairment. This was the
same amount of impairment found in the right shoulder; therefore, she apportioned the 2% right
shoulder impairment for pre-existing conditions.

        Dr. Bailey stated that she reviewed Dr. Guberman’s report and found it to be deficient.
Dr. Guberman failed to address the loss of range of motion in the left shoulder and relate it to the
right shoulder range of motion findings. He also failed to apportion the cervical spine assessment
for pre-existing degenerative changes. Lastly, he failed to address the upper right extremity
neurological complaints. She also found Dr. Sheridan’s report to be invalid because he failed to
adhere to West Virginia Code of State Rules § 85-20 and did not properly utilize the American
Medical Association’s Guides.


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        The Office of Judges reversed the claims administrator’s decision in its December 13,
2012, Order and granted Mr. Pelfrey a 5% permanent partial disability award. It noted that
Pritchard Electric Company, Inc., asserted in closing arguments that the claim was held
compensable for cervical sprain, thoracic sprain, and shoulder pain and that brachial neuritis was
denied. The assertion was not denied by Mr. Pelfrey; however, the Office of Judges noted that
the claims administrator’s compensability decision was not of record. Pritchard Electric
Company, Inc., argued before the Office of Judges that Dr. Guberman’s report failed to consider
pre-existing conditions and degenerative changes and was therefore less reliable than Dr.
Bailey’s report which correctly apportioned for pre-existing conditions. The Office of Judges
noted that both Drs. Guberman and Bailey found Dr. Sheridan’s independent medical evaluation
to be deficient; however, the report was not of record and could not be considered. The Office of
Judges ultimately held that Dr. Bailey’s report was more persuasive than Dr. Guberman’s and
concurred with her comments concerning his report.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its July 1, 2013, decision. This Court agrees with the reasoning
of the Office of Judges and the conclusions of the Board of Review. The evidentiary record
indicates that Mr. Pelfrey is entitled to a 5% permanent partial disability award for his
compensable injury.

        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: October 20, 2014

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




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