                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               April 29, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
BONNIE G. WALLER,                                                             OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-1379 (BOR Appeal No. 2047154)
                   (Claim No. 2010111584)

PRINCETON COMMUNITY HOSPITAL ASSOCIATION, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Bonnie G. Waller, by Reginald D. Henry and Rodney A. Skeens, her attorneys,
appeals the decision of the West Virginia Workers’ Compensation Board of Review. Princeton
Community Hospital Association, Inc., by Matthew L. Williams, its attorney, filed a timely
response.

        This appeal arises from the Board of Review’s Final Order dated October 22, 2012, in
which the Board affirmed an April 23, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s August 26, 2010,
decision granting Ms. Waller a 10% permanent partial disability award. The Office of Judges
granted Ms. Waller a 13% award for her right shoulder and cervical spine injuries. 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. Waller worked as a registered nurse for Princeton Community Hospital Association,
Inc. On October 16, 2009, Ms. Waller injured her right shoulder and neck when she caught a
falling patient. The claims administrator held her injury compensable for a shoulder and cervical
strain. Joseph Grady II, M.D., performed an independent medical evaluation on Ms. Waller and
found that she had 5% whole person impairment for her cervical range of motion deficits. He
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also found that she had 5% whole person impairment for her shoulder range of motion deficits.
He combined these ratings for a 10% whole person impairment rating. On August 26, 2010, the
claims administrator granted Ms. Waller a 10% permanent partial disability award based on Dr.
Grady’s report. Robert Walker, M.D., then evaluated Ms. Waller and found that she had 21%
whole person impairment for her cervical spine under the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993). Dr. Walker placed Ms.
Waller’s cervical injuries in Cervical Category III of West Virginia Code of State Rules § 85-20­
E (2006) because he believed she had significant radiculopathy and a cervical herniated disc.
Based on this finding, he adjusted her cervical impairment to 18% whole person impairment. Dr.
Walker also found 15% whole person impairment for range of motion restrictions of her
shoulder, which he combined with her cervical impairment for a 30% whole person impairment
rating. Michael Kominsky, D.C., also evaluated Ms. Waller. He diagnosed her with a cervical
herniated disc and found that she had 18% whole person impairment under the American
Medical Association Guides and Cervical Category III of West Virginia Code of State Rules §
85-20-E. Dr. Kominsky also found that she had 12% impairment for her right shoulder for a
combined 28% whole person impairment rating. A. E. Landis, M.D., then evaluated Ms. Waller.
He found that she had 8% whole person impairment under the American Medical Association’s
Guides and West Virginia Code of State Rules § 85-20-E. Dr. Landis found that Ms. Waller had
5% impairment related to her shoulder sprain for a combined 13% whole person impairment
rating. On April 23, 2012, the Office of Judges reversed the claims administrator’s decision and
granted Ms. Waller a 13% permanent partial disability award. The Board of Review affirmed the
Order of the Office of Judges on October 22, 2012, leading Ms. Waller to appeal.

       The Office of Judges concluded that Ms. Waller had combined 13% whole person
impairment attributable to her compensable injuries, which included 5% whole person
impairment for the right shoulder and 8% whole person impairment for the cervical spine. The
Office of Judges adopted Dr. Landis’s impairment recommendation for Ms. Waller’s cervical
and shoulder injuries. The Office of Judges considered the impairment ratings of Dr. Walker and
Dr. Kominsky. It found that neither impairment rating could be used. The Office of Judges
determined that both evaluations included impairment ratings for cervical herniated disc, which
was not a compensable condition of the claim. The Board of Review adopted the findings of the
Office of Judges and affirmed its Order.

        On appeal, Ms. Waller argues that she is entitled to at least a 12% permanent partial
disability award for her shoulder injury based on Dr. Kominsky’s evaluation. Ms. Waller asserts
that the Office of Judges was silent with respect to Dr. Walker’s and Dr. Kominsky’s impairment
rating for her shoulder.

       We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. The Office of Judges was within its discretion in relying on Dr. Landis’s independent
medical evaluation for both Ms. Waller’s right shoulder and cervical impairment ratings. Dr.
Landis properly applied the American Medical Association’s Guides and West Virginia Code of
State Rules § 85-20-E. There is no evidence in the record undermining the credibility of Dr.
Landis’s recommendation. Dr. Walker’s and Dr. Kominsky’s recommendations included an
impairment rating for cervical herniated disc, which was not a compensable condition. The
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inclusion sufficiently detracted from the credibility of each report that the Office of Judges was
justified in not relying on either doctor’s shoulder impairment recommendations.

        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: April 29, 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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