                              STATE OF WEST VIRGINIA

                                                                                    FILED
                          SUPREME COURT OF APPEALS                               March 12, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
SWVA, INC.,                                                                    OF WEST VIRGINIA

Employer Below, Petitioner

vs.)   No. 13-0623 (BOR Appeal No. 2047951)
                   (Claim No. 2011026883)


JOSEPH L. BUTCHER,
Claimant Below, Respondent


                              MEMORANDUM DECISION
      Petitioner SWVA, Inc., by Matthew L. Williams, its attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review.

       This appeal arises from the Board of Review’s Final Order dated May 17, 2013, in which
the Board affirmed a November 30, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s September 26,
2011, decision granting a 3% permanent partial disability award and granted him an 18%
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 that the Board of Review’s decision is based on a violation of a
statutory provision. This case satisfies the “limited circumstances” requirement of Rule 21(d) of
the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion.

        Joseph L. Butcher, an employee of SWVA, Inc., was injured on January 24, 2011, when
he slipped on a piece of ice and fell onto his back. Mr. Butcher filed an application for workers’
compensation benefits and his claim was held compensable for a cervical, thoracic, and lumbar
spine sprain. Mr. Butcher was then evaluated by three separate physicians. Marsha Bailey, M.D.,
examined Mr. Butcher and determined he had reached his maximum degree of medical
improvement. In regard to the cervical, thoracic, and lumbar spine, Dr. Bailey used the range of
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motion model and Table 75 of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993) and found 2%, 5%, and 4% impairment, respectively. Dr.
Bailey found the cervical range of motion to be invalid and the lumbar and thoracic to be pain
restricted. Dr. Bailey adjusted these ratings to fit within Category II of West Virginia Code of
State Rules §§ 85-20-C, 85-20-D, and 85-20-E (2006). This equated to 5% impairment per
section of the spine for a total of 15% whole person impairment. Dr. Bailey then apportioned
12% impairment to pre-existing causes and 3% for the compensable injury based upon
chiropractic records and a MRI of the lumbar spine. She justified her apportionment by stating
that Mr. Butcher had degenerative joint disease and degenerative disc disease. The claims
administrator adopted Dr. Bailey’s reasoning and entered an award of 3% permanent partial
disability. Mr. Butcher protested this decision.

        Bruce Guberman, M.D., also conducted an independent medical evaluation of Mr.
Butcher and determined that he had 18% whole person impairment. Dr. Guberman’s impression
was that Mr. Butcher had an acute and chronic cervical, thoracic, and lumbar spine strain, post-
traumatic. He also found an L4-5 disc herniation. Dr. Guberman noted Mr. Butcher was at his
maximum degree of medical improvement. Dr. Guberman used the range of motion model and
found impairment in the cervical, thoracic, and lumbar spine of 4%, 5%, and 7% respectively.
Dr. Guberman placed Mr. Butcher in Lumbar, Thoracic, and Cervical Category II of West
Virginia Code of State Rules §§ 85-20-C, 85-20-D, and 85-20-E. This resulted in 7% whole
person impairment for the cervical spine, 5% for the thoracic spine, and 8% for the lumbar spine.
When combined, Dr. Guberman reached 18% whole person impairment. Dr. Guberman felt that
no apportionment of pre-existing conditions needed to be made. Dr. Guberman did not recognize
in his independent medical examination that Mr. Butcher reported to chiropractor Larry Perry,
D.C., fifty-one times prior to the compensable injury. In all of the fifty-one examinations from
2006 through 2010, Dr. Perry noted decreased range of motion in Mr. Butcher’s lumbar spine.

        Prasadarao Mukkamala, M.D., also conducted an independent medical evaluation. Dr.
Mukkamala noted that Mr. Butcher was at his maximum degree of medical improvement. Dr.
Mukkamala examined the cervical spine and utilized the range of motion model to determine that
Mr. Butcher had 2% impairment. Dr. Mukkamala noted no sensory defects. Dr. Mukkamala
further opined that since there was no specific spine disorder that resulted from the compensable
injury, Mr. Butcher could not qualify for any impairment under Table 75 of the American
Medical Association’s Guides. Dr. Mukkamala then applied West Virginia Code of State Rules §
85-20-E and placed Mr. Butcher in Category I, for an impairment rating of 0%. Dr. Mukkamala
went through the same line of reasoning for the thoracic spine. Dr. Mukkamala then placed Mr.
Butcher in Category II-B from Table 75 of the American Medical Association’s Guides and
assigned 5% whole person impairment based upon the lumbar spine. Dr. Mukkamala also found
4% impairment for loss of range of motion in the lumbar spine. Dr. Mukkamala combined the
ratings to reach 9% whole person impairment for the lumbar spine. Dr. Mukkamala found that
9% does not fall into the accepted ranges under Lumbar Category II of West Virginia Code of
State Rules § 85-20-C and he adjusted it to 8% whole person impairment. Dr. Mukkamala then
noted chiropractic treatment records related to the lower back as far back as 2006. Dr.
Mukkamala apportioned 3% impairment due to pre-existing causes and 5% disability due to the
compensable condition.
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        The Office of Judges found Dr. Guberman’s report to be the most credible and reliable
report of record and granted Mr. Butcher an 18% permanent partial disability award. The Board
of Review adopted the findings of the Office of Judges and affirmed its Order.

        The decisions of the Office of Judges and Board of Review is in clear violation of West
Virginia Code of State Rules § 85-20-66.4 (2006). West Virginia Code of State Rules § 85-20­
66.4, provides “[t]o the extent that factors other than the compensable injury may be affecting
the injured worker's whole body medical impairment, the opinion stated in the report must, to the
extent medically possible, determine the contribution of those other impairments whether
resulting from an occupational or a nonoccupational injury, disease, or any other cause.” In this
case there is ample evidence of pre-existing lumbar spine issues that decreased Mr. Butcher’s
range of motion. This is shown in the chiropractic records from 2006 through 2010. In all of his
fifty-one examinations, Dr. Perry noted a decreased range of motion related to the lumbar spine.
Dr. Guberman’s decision to not apportion without a valid reason is a violation of West Virginia
Code of State Rules § 85-20-66.4. Therefore, the Office of Judges reliance upon Dr. Guberman’s
opinion, and the Board of Review’s affirmation of the Office of Judge’s Order, is clearly wrong.
Moreover Dr. Bailey’s opinion, on which the claims administrator relied, is unreliable for the
purpose of determining Mr. Butcher’s amount of permanent impairment because she was unable
to obtain valid range of motion measurements. The report of Dr. Mukkamala should have been
adopted by the Office of Judges and Board of Review because it is the only report that obtained
valid range of motion measurements and apportioned for Mr. Butcher’s pre-existing conditions.

        For the foregoing reasons, we find that the decision of the Board of Review is in clear
violation of a statutory provision. Therefore, the decision of the Board of Review is reversed and
remanded with instructions to grant Mr. Butcher a 5% permanent partial disability award in
reliance on Dr. Mukkamala’s evaluation.

                                                                        Reversed and Remanded.

ISSUED: March 12, 2015

CONCURRED IN BY:
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISSENTING
Chief Justice Margaret L. Workman

Justice Menis E. Ketchum, disqualified




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