                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             December 11, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TERRY WILLIAMS,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 15-0185	 (BOR Appeal No. 2049861)
                   (Claim No. 2013006496)

CHARLESTON HAULING,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Terry Williams, by William Gerwig III, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Charleston Hauling, by Katherine
Arritt and Jeffrey Brannon, its attorneys, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 25, 2015, in
which the Board affirmed an October 3, 2014, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 1, 2013,
decision granting Mr. Williams a 9% 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.

       On September 5, 2012, Mr. Williams sustained an open fracture of the proximal phalanx
of his left thumb, along with significant tissue damage, while emptying a dumpster. He
underwent multiple surgeries to repair the damage to his left thumb. Additionally, Mr. Williams
has undergone three independent medical evaluations for the purpose of determining his amount
of whole person impairment arising from the September 5, 2013, injury.


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       Barry Levin, M.D., evaluated Mr. Williams on September 6, 2013. He opined that Mr.
Williams sustained 29% left thumb impairment as a result of range of motion abnormalities and
13% left thumb impairment as a result of loss of sensation. Using the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr. Levin
opined that Mr. Williams sustained 9% whole person impairment as a result of the September 5,
2012, left thumb injury. On October 1, 2013, the claims administrator granted Mr. Williams a
9% permanent partial disability award based upon Dr. Levin’s independent medical evaluation.

        On December 17, 2013, Bruce Guberman, M.D., evaluated Mr. Williams. He opined that
Mr. Williams sustained 27% left thumb impairment as a result of range of motion abnormalities
and 50% left thumb impairment as a result of loss of sensation. Utilizing the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, Dr. Guberman opined that Mr.
Williams sustained 14% whole person impairment as a result of the September 5, 2012, injury.
Finally, Paul Bachwitt, M.D., evaluated Mr. Williams on July 24, 2014. He opined that Mr.
Williams sustained 12% left thumb impairment as a result of range of motion abnormalities and
25% left thumb impairment as a result of loss of sensation. Utilizing the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, Dr. Bachwitt opined that Mr.
Williams sustained 8% whole person impairment as a result of the September 5, 2012, injury.

        In its Order affirming the October 1, 2013, claims administrator’s decision, the Office of
Judges held that the evidence of record demonstrates that Mr. Williams sustained 9% whole
person impairment as a result of the September 5, 2012, injury. The Board of Review affirmed
the reasoning and conclusions of the Office of Judges in its decision dated February 25, 2015. On
appeal, Mr. Williams asserts, per the opinion of Dr. Guberman, that he is entitled to a 14%
permanent partial disability award arising from the September 5, 2012, injury.

        In its Order, the Office of Judges noted that neither Dr. Levin nor Dr. Bachwitt found the
degree of overall impairment that Dr. Guberman did and concluded that if Dr. Guberman’s
findings are accurate, they must represent a temporary occurrence and do not represent the true
amount of Mr. Williams’s permanent impairment arising from the September 5, 2012, injury. In
particular, the Office of Judges noted that Dr. Guberman’s overall findings are notably worse
than those of Dr. Levin and Dr. Bachwitt despite the fact that Dr. Guberman’s evaluation
occurred approximately three months after Dr. Levin’s evaluation and approximately seven
months before Dr. Bachwitt’s evaluation. Therefore, the Office of Judges determined that Mr.
Williams is entitled to the 9% permanent partial disability award received by Dr. Bachwitt. 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.



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                                        Affirmed.


ISSUED: December 11, 2015

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




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