                             STATE OF WEST VIRGINIA


                          SUPREME COURT OF APPEALS
                                                                                    FILED
GEORGE RUNION,                                                                   November 29, 2016
                                                                              RORY L. PERRY II, CLERK
Claimant Below, Petitioner                                                  SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA


vs.)   No. 15-1030 (BOR Appeal No. 2050356)
                    (Claim No. 2012036491)

WINCHESTER MINE, LLC,
         Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner George Runion, by Otis R. Mann Jr., his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Winchester Mine, LLC, by Henry C.
Bowen, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated September 25, 2015, in
which the Board affirmed the March 27, 2015, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s November 20,
2013, decision granting a 25% 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. Runion was injured on May 21, 2012, while working as an employee for Winchester
Mine, LLC, when the four-wheeler on which he was riding rolled down a hill after an axle broke.
Mr. Runion was hit by a timber, injuring his left shoulder and cervical spine. He was initially
treated conservatively by the physicians at MedExpress. On November 5, 2012, Mr. Runion was
seen in consultation by Robert J. Crow, M.D., for an evaluation of his chronic neck and upper
left extremity complaints. Dr. Crow diagnosed cervical strain, cervical spondylosis, cervical
radiculopathy, and neck pain. Dr. Crow recommended two-level anterior cervical discectomy.
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Saghir R. Mir, M.D., performed an independent medical evaluation on January 21, 2013. Dr. Mir
recommended a repeat surgical consultation, injections, and surgery. On May 23, 2013, Dr.
Crow performed a C6-C7 anterior cervical discectomy and fusion.

         Dr. Mir performed a second independent medical evaluation on October 9, 2013. Mr.
Runion reported to Dr. Mir that he continued to experience aching, throbbing, and burning in the
cervicodorsal and left scapular areas. Dr. Mir noted Mr. Runion was walking with a cane.
However, Mr. Runion did not have a limp and was able to walk without the cane during the
examination. Dr. Mir also noted Mr. Runion had a normal gait. Dr. Mir diagnosed post-operative
discectomy with fusion at C6-C7, pre-existing degenerative changes and bulging disc at C5-C6,
and normal examination of the left shoulder without evidence of tendinitis or rotator cuff
pathology. Dr. Mir assessed 25% impairment for the cervical spine due to the fusion. He
assessed 0% impairment for the left shoulder because Mr. Runion exhibited only slight limitation
of flexion and forward flexion due to symptoms in the left cervicoscapular area. In his opinion,
the left shoulder sprain and tendinitis had completely resolved.

        On November 20, 2013, Mr. Runion was granted a 25% permanent partial disability
award. Bruce A. Guberman, M.D., performed an independent medical evaluation on May 9,
2014. Mr. Runion complained of pain in his neck with radiation into both shoulders and arms.
He also reported numbness and tingling in his left arm, weakness in both hands and arms, and
problems walking. Dr. Guberman noted Mr. Runion was unable to walk on his toes or on his
heels and was unable to walk heel to toe. Dr. Guberman’s impression was acute and chronic
post-traumatic cervical spine strain, post-traumatic disc herniation at C6-C7, anterior cervical
discectomy and fusion at the C6-C7 level for left sided radiculopathy, residual myelopathy, and
chronic post-traumatic strain of the left shoulder with persistent range of motion abnormalities.
In Dr. Guberman’s opinion, Mr. Runion exhibited an uneven gait. Dr. Guberman assessed 32%
whole person impairment. The rating was based on 28% cervical spine impairment, which
included impairment for gait derangement, and 5% impairment for the left shoulder.

       Mr. Runion asserts that an equal amount of evidentiary weight exists between the
opinions of Dr. Guberman and Dr. Mir. Therefore, Dr. Guberman’s assessment of impairment
should be used in determining his permanent partial disability award. However, the Office of
Judges did not agree with this assessment of the evidence

        The Office of Judges found the opinion of Dr. Mir to be more reliable than that of Dr.
Guberman as Dr. Mir correctly applied the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993) and West Virginia Code of State Rules §85­
20 (2006). The Office of Judges found Dr. Guberman’s inclusion of impairment for gait
derangement was not for the cervical spine injury, and therefore, it should not have been used in
assessing the whole person impairment. Additionally, the Office of Judges determined the slight
limitation in Mr. Runion’s left shoulder range of motion was more likely than not related to the
cervicoscapular area, considering his cervical surgery. Therefore, the Office of Judges did not
believe the left shoulder impairment assessment should have been included in the whole person
impairment. Accordingly, the Office of Judges affirmed the claims administrator’s award of 25%
permanent partial disability.
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       The Board of Review adopted the Office of Judge’s findings of fact and conclusions of
law when it affirmed the Order on September 25, 2015. The Office of Judges reviewed the
evidence and found Dr. Mir was the only physician that applied the American Medical
Association’s Guides and West Virginia Code of State Rules § 85-20 correctly. Therefore, Dr.
Mir’s opinion was found to be more reliable. We agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review.

        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: November 29, 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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