                             STATE OF WEST VIRGINIA

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

Claimant Below, Petitioner

vs.)   No. 13-0221 (BOR Appeal No. 2047801)
                   (Claim No. 2011018480)

THE HOME DEPOT USA, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Wanda L. Staley, by William B. Gerwig III, her attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. The Home Depot USA, Inc., by
Robert E. Rockwell, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 11, 2013, in
which the Board affirmed an October 25, 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 which awarded an 8% 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. Staley, a clerk, was injured in the course of her employment on November 18, 2010,
while pushing a line of shopping carts. Her claim was held compensable for sprain of the neck
and thoracic spine. She was evaluated by Allen Young, M.D., on July 5, 2011. In that evaluation,
Dr. Young found that Ms. Staley had reached maximum medical improvement. He assessed 4%
cervical impairment per Table 75 of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment, (4th Edition, 1993) and 10% impairment for range of
motion loss. These were combined for a total whole person impairment of 14%. He then
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determined that Ms. Staley fell into Category II of West Virginia Code of State Rules § 85-20­
Table E (2006). This category indicates impairment between 5% and 8%. He therefore adjusted
his rating to 8% whole person impairment. Accordingly, the claims administrator granted Ms.
Staley an 8% permanent partial disability award on August 12, 2011.

        Ms. Staley protested the award and argued before the Office of Judges that the
Legislature affords claims administrators no authority to reduce or modify a claimant’s
permanent partial disability award and that Ms. Staley’s permanent partial disability award was
reduced in violation of West Virginia Code § 23-4-6(i) (2005) based upon criteria other than her
medical impairment. She asserted that West Virginia Code of State Rules § 85-20-64.1 (2006)
limits permanent partial disability awards based upon preconceived standards based upon a
diagnosis regardless of a claimant’s actual medical impairment. Ms. Staley opined that this
portion of West Virginia Code of State Rules § 85-20-64.1 is therefore inconsistent with
statutory law and its application to this claim results in an understated assessment of actual
permanent disability.

        The Office of Judges affirmed the claims administrator’s decision in its October 25,
2012, Order. It found that there was no evidence submitted establishing a higher whole person
impairment based upon West Virginia Code of State Rules § 85-20 (2006) than Dr. Young’s
finding of 8% impairment. The Office of Judges held that Ms. Staley’s argument regarding the
validity and veracity of West Virginia Code of State Rules § 85-20 has been ruled upon by this
Court in Simpson v. West Virginia Office of Commissioner, 23 W.Va. 495, 678 S.E.2d 1 (2009).
In that case, this Court held that the Legislature may delegate to an agency the power to make
rules and regulations to implement the statute under which the agency functions and that West
Virginia Code of State Rules § 85-20-Table C (2006) was a valid and proper exercise of the rule-
making authority delegated to the Workers’ Compensation Board of Managers by the
Legislature. Thus, the Office of Judges held that Ms. Staley’s 14% whole person impairment was
properly reduced to 8% whole person impairment.

        The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its February 11, 2013, decision. This Court agrees with the
conclusions of the Board of Review. Ms. Staley’s request for an additional permanent partial
disability award is inconsistent with this Court’s previous decisions. See, e.g., Gore v. Insurance
Commissioner of West Virginia, No. 11-0612 (March 28, 2013) (memorandum decision). Ms.
Staley has not demonstrated that she is entitled to more than an 8% permanent partial disability
award.

        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: June 27, 2014
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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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