                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                            September 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CLESTENE A. HINES-DAVIDSON,                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0804	 (BOR Appeal No. 2047962)
                   (Claim No. 2011020131)

WHEELING HOSPITAL, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Clestene A. Hines-Davidson, by Jonathan Bowman, her attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Wheeling Hospital,
Inc., by Jennifer Hagedorn, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated July 5, 2013, in which
the Board affirmed a December 4, 2012, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s August 12, 2011, decision
granting Ms. Hines-Davidson a 4% 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.

        Ms. Hines-Davidson injured her left knee on November 23, 2010, while assisting a
patient and the claim was subsequently held compensable. Following the injury, she treated with
Heather Gibbons, FNP-BC, and E. Fritz Braunlich, M.D., both of whom recommended that Ms.
Hines-Davidson undergo physical therapy. Additionally, Dr. Braunlich treated Ms. Hines­
Davidson’s left knee with steroid injections. On August 1, 2011, Sushil Sethi, M.D., performed
an independent medical evaluation. He determined that Ms. Hines-Davidson had reached
maximum medical improvement after reaching a treatment plateau. Dr. Sethi opined that Ms.
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Hines-Davidson sustained 4% whole person impairment as a result of range of motion
abnormalities in the left knee. Ms. Gibbons re-examined Ms. Hines-Davidson on August 10,
2011, and also concluded that she had reached maximum medical improvement and released her
from treatment for the occupational injury.

       The claims administrator granted Ms. Hines-Davidson a 4% permanent partial disability
award based on Dr. Sethi’s independent medical evaluation on August 12, 2011. On March 24,
2012, James Dauphin, M.D., performed an independent medical evaluation. He determined that
Ms. Hines-Davidson had not reached maximum medical improvement. However, he provided an
opinion regarding the amount of Ms. Hines-Davidson’s permanent impairment resulting from her
compensable injuries. He opined that if Ms. Hines-Davidson is deemed to have reached
maximum medical improvement, she has 14% whole person impairment as a result of range of
motion deficits in the left knee.

       In its Order affirming the August 12, 2011, claims administrator’s decision, the Office of
Judges held that Ms. Hines-Davidson failed to demonstrate that she is entitled to more than a 4%
permanent partial disability award. Ms. Hines-Davidson disputes this finding and asserts, per the
opinion of Dr. Dauphin, that she is entitled to an additional 10% permanent partial disability
award, for a total award of 14%.

        The Office of Judges found that Dr. Dauphin’s report cannot be considered reliable in
light of the entirety of the medical evidence of record. The Office of Judges noted that Dr.
Dauphin found that Ms. Hines-Davidson has not reached maximum medical improvement, and
determined that this finding is not consistent with the weight of the medical evidence of record,
particularly when considering that Dr. Sethi and Ms. Gibbons determined that Ms. Hines-
Davidson had reached maximum medical improvement in August of 2011. Additionally, the
Office of Judges found that Dr. Dauphin’s own findings lack consistency. The Office of Judges
noted that despite finding that Ms. Hines-Davidson had not reached maximum medical
improvement, he calculated the amount of her permanent impairment resulting from the
compensable injury. As noted by the Office of Judges, the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993) require that a claimant have
reached maximum medical improvement with regard to a given injury before a determination of
permanent impairment can be made. In accordance with the American Medical Association’s
Guides, Dr. Dauphin should not have assessed the amount of Ms. Hines-Davidson’s whole
person impairment after concluding that she had not reached maximum medical improvement.
The Office of Judges therefore concluded that if Dr. Dauphin believed that Ms. Hines-Davidson
had not reached maximum medical improvement, his opinion cannot be considered an accurate
or reliable assessment of the amount of her permanent impairment. The Board of Review
affirmed the reasoning and conclusions of the Office of Judges in its decision of July 5, 2013.
We agree with the reasoning and conclusions of 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: September 18, 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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