                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS
                                                                                   FILED
LISA EVANS,                                                                     October 3, 2014
                                                                            RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.)   No. 13-0321 (BOR Appeal No. 2047769)
                    (Claim No. 2011031220)

REYNOLDS MEMORIAL HOSPITAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Lisa Evans, by Jonathan C. Bowman, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Reynolds Memorial Hospital, Inc., by
Gary W. Nickerson and James W. Heslep, its attorneys, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated February 25, 2013, in
which the Board affirmed an October 5, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges granted Ms. Evans an 8% permanent partial disability
award, reversing the claims administrator’s June 29, 2011, decision granting her a 0% 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. Evans worked for Reynolds Memorial Hospital as a licensed practical nurse. On
March 20, 2011, while Ms. Evans was moving a patient, she felt spasms in her right mid thoracic
and lumbar spine. She was seen the same day by an emergency room physician at Reynolds
Memorial Hospital. On June 11, 2011, Ms. Evans further aggravated her injury while attempting
to lift another patient. This claim was held to be a compensable aggravation of the March 20,
2011, injury. The claims administrator found 0% permanent partial disability related to Ms.
Evans’s lumbar spine injury that occurred on March 20, 2011. Ms. Evans protested this decision.


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        The Office of Judges determined that the only issue in litigation was the amount of
permanent partial disability secondary to the lumbar spine injury that occurred on March 20,
2011. Ms. Evans asserted she was entitled to a 14% permanent partial disability award based
upon the report of Bruce Guberman, M.D., who concluded she had 14% whole person
impairment. The Office of Judges compared three different medical evaluations. The evaluation
from Sushil Sethi, M.D., conducted May 23, 2011, was disregarded by the Office of Judges
because it predated Ms. Evans compensable aggravation that occurred on June 11, 2011. The
Office of Judges then compared the reports of Dr. Guberman and Christopher Martin, M.D. Dr.
Guberman found 14% whole person impairment related to the injury as a whole, of which 7%
was related to the thoracic spine and 8% to the lumbar spine. Dr. Martin determined the claimant
had no resulting disability in the lumbar spine. When examining the two reports the Office of
Judges determined that the main difference was that Dr. Guberman made the Table 75 of
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993) designation, while Dr. Martin did not. Both doctors were critical of each other’s
classification. The Office of Judges chose to adopt Dr. Guberman’s report because he more
closely followed the American Medical Association’s Guides. The Office of Judges supported its
conclusion by adding that even if Dr. Martin and Dr. Guberman’s Table 75 of the American
Medical Association’s Guides designation represented a reasonable difference of opinion then
under West Virginia Code § 23-4-1g (2008), the issue would be resolved in a manner most
consistent with Ms. Evans’s position. Accordingly, Ms. Evans’s position was adopted and Dr.
Guberman’s recommendation of 8% permanent partial disability related to the lumbar spine was
adopted. The Board of Review adopted the findings of the Office of Judges and affirmed its
Order.

         We agree with the findings of the Office of Judges and the conclusions of the Board of
Review. Ms. Evans cannot show that she is entitled to any more than an 8% permanent partial
disability award because the only issue on appeal is her lumbar injury. In that regard, Dr.
Guberman’s report contains the highest level of impairment, and it only found 8% whole person
impairment related to her lumbar injury. There is no other report of record that opines Ms. Evans
is entitled to any more than an 8% permanent partial disability award related to her lumbar spine.

        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 3, 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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