                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               July 17, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JAMES B. SMITH,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 11-1437	 (BOR Appeal No. 2045868
                   (Claim No. 2009074908)

HWM TRUCK LINES, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner James B. Smith, by Robert Stultz, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. HWM Truck Lines, Inc., by Alyssa
Sloan, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 20, 2011, in
which the Board affirmed an April 13, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 17, 2009,
decision granting no 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 that the Board of Review’s decision is based upon a material
misstatement or mischaracterization of the evidentiary record. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the Revised Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.

       Mr. Smith was injured on January 7, 2009, when he fell while climbing off an end loader.
Mr. Smith underwent three independent medical evaluations to determine the amount of
permanent impairment resulting from the January 7, 2009, injury. On June 17, 2009, Dr.
Guberman evaluated Mr. Smith and recommended a 0% permanent partial disability award after
placing him in Category I of West Virginia Code of State Rules § 85-20-E (2006). On February
24, 2010, Dr. Snead evaluated Mr. Smith and found evidence of a cervical disc herniation with
                                                1
mild nerve root impingement. He then recommended an 8% permanent partial disability award
after placing him in Category II of West Virginia Code of State Rules § 85-20-E. On November
18, 2010, Dr. Martin evaluated Mr. Smith and agreed with the recommendations of Dr.
Guberman.

        In its Order affirming the July 17, 2009, claims administrator’s decision, the Office of
Judges held that Mr. Smith has no permanent partial disability as a result of the January 7, 2009,
injury. The Board of Review affirmed the reasoning and conclusions of the Office of Judges. Mr.
Smith disputes this finding and asserts, per the opinion of Dr. Snead, that he is entitled to an 8%
permanent partial disability award for the January 7, 2009, injury.

         The Office of Judges failed to properly consider the evidence of record. First, the Office
of Judges stated that “[p]art of the medical reports in evidence use the diagnostic related estimate
(DRE) … as the methodology for rating the impairment of the spine injury.” The Office of
Judges then noted that this Court invalidated the DRE method in Repass v. Workers’
Compensation Div., 212 W. Va. 86, 569 S.E.2d 162 (2002), and stated that “the portion of a
medical report using the DRE methodology will be deemed unreliable.” The Office of Judges
failed to identify which report it found that utilized the DRE method. Next, the Office of Judges
listed the various range of motion measurements obtained by each evaluator and then stated only
that “[t]here is no consistency in this.” Finally, the Office of Judges discussed Category II of
West Virginia Code of State Rules § 85-20-E and seemingly found that placement in this
category is inappropriate because Mr. Smith’s complaints of radicular pain cannot be verified.
However, the Office of Judges noted that a criterion for placement in Category II is “non­
verifiable radicular complaints defined by complaints of radicular pain without objective
findings.” No further discussion in relation to the evidence of record was provided. After
reviewing the record, it is apparent that the Office of Judges failed to properly analyze the
independent medical evaluations of record as applied to the amount of Mr. Smith’s permanent
impairment resulting from the January 7, 2009, injury.

        For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material misstatement or mischaracterization of the evidentiary record. Therefore, the decision
of the Board of Review is reversed and the claim is remanded with instructions to determine the
amount of Mr. Smith’s permanent impairment, if any, with full consideration given to the
independent medical evaluations of Drs. Guberman, Snead, and Martin.

                                                                          Reversed and remanded.


ISSUED: July 17, 2013

CONCURRED IN BY:
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
                                                 2
DISSENTING:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis




                                  3
