                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
GUTHRIE BOWLES,                                                               OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0158	 (BOR Appeal No. 2047517)
                   (Claim No. 2010134936)

THOMAS HEALTH SYSTEM,
Employer Below, Respondent


                             MEMORANDUM DECISION
      Petitioner Guthrie Bowles, by William Gerwig III, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Thomas Health System, by Toni
Minner, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated January 28, 2013, in
which the Board affirmed a July 25, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 25, 2011,
decision granting Mr. Bowles a 2% 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 upon a material
mischaracterization of the evidentiary record. 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.

       Mr. Bowles injured his right wrist on May 21, 2010, while moving laundry and the claim
was held compensable for a right wrist sprain on June 1, 2010. On January 14, 2011, Prasadarao
Mukkamala, M.D., performed an independent medical evaluation and found that Mr. Bowles
sustained 2% whole person impairment as a result of the May 21, 2010, injury. On January 25,
2011, the claims administrator granted Mr. Bowles a 2% permanent partial disability award
based on Dr. Mukkamala’s evaluation. On March 10, 2011, Bruce Guberman, M.D., performed
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an independent medical evaluation and found that Mr. Bowles sustained 5% whole person
impairment as a result of the May 21, 2010, injury. On May 23, 2011, Dr. Mukkamala issued a
supplemental report and opined that Mr. Bowles did not sustain more than 2% whole person
impairment as a result of the May 20, 2010, injury. He further opined that Dr. Guberman’s range
of motion measurements are not consistent with those obtained by occupational therapist Angela
Bills and David Soulsby, M.D. Although Dr. Mukkamala stated that he reviewed the reports of
Ms. Bills and Dr. Soulsby, they are not contained in the evidentiary record. On November 10,
2011, Dr. Mukkamala performed another independent medical evaluation for the purpose of
evaluating an unrelated occupational injury to Mr. Bowles’s right shoulder. He re-evaluated the
range of motion in Mr. Bowles’s right wrist and stated that although he had previously detected
range of motion abnormalities in the right wrist, the range of motion in Mr. Bowles’s right wrist
is currently normal.

       On February 17, 2012, the Office of Judges reversed the January 25, 2011, claims
administrator’s decision and granted Mr. Bowles a 5% permanent partial disability award based
on the opinion of Dr. Guberman. The Office of Judges found that there is nothing to suggest that
Dr. Guberman did not adhere to the guidelines set forth in 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), and therefore determined that his report is entitled to greater
evidentiary weight. Thomas Health System requested that the Office of Judges reconsider its
decision because it did not take Dr. Mukkamala’s November 10, 2011, independent medical
evaluation into consideration.

        The Office of Judges issued a second Order on July 25, 2012, and it is this Order that is
the subject of the instant appeal. In its July 25, 2012, Order, the Office of Judges affirmed the
claims administrator’s January 25, 2011, decision and held that Mr. Bowles is entitled to no
greater than a 2% permanent partial disability award for the May 21, 2010, injury. Mr. Bowles
disputes this finding and asserts that he is entitled to the 5% permanent partial disability award
recommended by Dr. Guberman, because the Office of Judges has already determined that Dr.
Guberman’s opinion is entitled to greater evidentiary weight.

        In its July 25, 2012, decision, the Office of Judges again found that there is no suggestion
that Dr. Guberman did not adhere to the guidelines set forth in the American Medical
Association’s Guides and West Virginia Code of State Rules § 85-20. However, in its July 25,
2012, discussion, the Office of Judges concluded that Dr. Mukkamala’s opinion is entitled to
greater evidentiary weight because he evaluated Mr. Bowles most recently and detected no range
of motion impairment in his latest evaluation. The Board of Review affirmed the Office of
Judges’ Order in its January 28, 2013, decision.

        We find that the decisions of the Board of Review and Office of Judges are based upon a
material mischaracterization of the evidentiary record. The Office of Judges initially determined
that Dr. Guberman’s evaluation is entitled to greater evidentiary weight in its February 17, 2012,
Order. Additionally, the Office of Judges specifically found on both February 17, 2012, and July
25, 2012, that Dr. Guberman’s report is in compliance with the American Medical Association’s
Guides and West Virginia Code of State Rules § 85-20. We agree with the Office of Judges’
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finding in both decisions that the opinion of Dr. Guberman is reliable, and find that Mr. Bowles
is entitled to a permanent partial disability award consistent with his opinion.

        For the foregoing reasons, we find that the decision of the Board of Review is based upon
a material mischaracterization of the evidentiary record. Therefore, the decision of the Board of
Review is reversed and the claim is remanded with instruction to grant Mr. Bowles an additional
3% permanent partial disability award, for a total award of 5% arising from the May, 21, 2010,
injury in accordance with the opinion of Dr. Guberman.


                                                                        Reversed and remanded.


ISSUED: June 27, 2014

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

DISSENTING:
Justice Brent D. Benjamin




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