                             STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS                                FILED
                                                                               February 5, 2013

                                                                            RORY L. PERRY II, CLERK

LARRY F. HENDERSON,                                                       SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA
Claimant Below, Petitioner

vs.)   No. 11-0720	 (BOR Appeal No. 2044957)
                   (Claim No. 2005036921)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

CABELA’S WHOLESALE, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Larry F. Henderson, by Jonathan Bowman, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Anna Faulkner, its attorney, filed a timely response.

         This appeal arises from the Board of Review’s Final Order dated March 21, 2011, in
which the Board affirmed a July 29, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 22,
2008, decision granting Mr. Henderson an additional 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 no substantial question of law. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.


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       Mr. Henderson was employed as a laborer with Cabela’s Wholesale, Inc. He injured his
cervical spine, lumbar spine, and right shoulder on April 4, 2005. On September 20, 2005, he
was granted a 5% permanent partial disability award. Mr. Henderson has undergone four
independent medical evaluations to determine the amount of permanent impairment resulting
from his compensable injuries. On August 23, 2005, Dr. Brown performed an independent
medical evaluation and recommended a total permanent partial disability award of 5% for Mr.
Henderson’s compensable injuries; on June 30, 2008, Dr. Langa examined Mr. Henderson and
recommended a total permanent partial disability award of 7%; on June 11, 2009, Dr. Guberman
recommended a total permanent partial disability award of 15%; and on December 10, 2009, Dr.
Thrush recommended a total permanent partial disability award of 5% for Mr. Henderson’s
compensable injuries.

        In its decision granting Mr. Henderson an additional 2% permanent partial disability
award, the claims administrator relied on the opinion of Dr. Langa. However, the Office of
Judges found that Dr. Langa’s report is not conclusive because she failed to apply West Virginia
Code of State Rules § 85-20 (2006) when calculating the amount of Mr. Henderson’s permanent
impairment. The Office of Judges also discredited the report of Dr. Guberman based on a finding
that his recommendations were excessive. The Office of Judges then relied on the opinion of Dr.
Thrush as a basis to affirm the claims administrator’s decision. The Office of Judges found that
even though Dr. Thrush recommended a total permanent partial disability award of 5%, Mr.
Henderson should retain the additional 2% permanent partial disability award, which gave him a
total award of 7%, because the 7% total award falls within the permissible range of impairment
ratings for the lumbar spine injury identified by Dr. Thrush.

        In Repass v. Workers’ Compensation Div., 569 S.E.2d 162, 171, 212 W.Va. 86, 95
(2002), this Court held that permanent partial disability awards are to be made solely on the basis
of a physician’s impairment evaluation. The claims administrator’s decision that granted Mr.
Henderson an additional 2% permanent partial disability award, bringing his total permanent
partial disability award for the April 4, 2005, injuries to 7%, was based on the opinion of Dr.
Langa. However, the Office of Judges discredited the reports of both Dr. Langa and Dr.
Guberman. The other two independent medical evaluations of record recommended a total
permanent partial disability award of 5% for the compensable injuries. In an attempt to preserve
Mr. Henderson’s 7% permanent partial disability award, the Office of Judges found that because
the 7% award falls within the permissible range of impairment ratings for the lumbar spine injury
identified by Dr. Thrush, he is permitted to retain his 7% permanent partial disability award. The
Board of Review affirmed both the reasoning and conclusions of the Office of Judges.

         The Office of Judges’ and Board of Review’s conclusions are in direct violation of this
Court’s decision in Repass. There is nothing in the record to indicate that the Office of Judges’
finding that the reports of Dr. Langa and Dr. Guberman are not credible was clearly wrong;
however, after discrediting Dr. Langa’s report, Mr. Henderson’s 7% permanent partial disability
award is no longer based on a physician’s impairment evaluation. The remaining two
independent medical evaluations of record recommended a total permanent partial disability
award of 5% for Mr. Henderson’s compensable injuries. Therefore, Mr. Henderson is entitled to
a total permanent partial disability award of 5%.
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        For the foregoing reasons, we find that the decision of the Board of Review is clearly the
result of erroneous conclusions of law. Therefore, the decision of the Board of Review is
reversed, and the case is remanded with the instruction to grant Mr. Henderson a total permanent
partial disability award of 5% for the compensable injuries occurring on April 4, 2005.



                                                                        Reversed and remanded.

ISSUED: February 5, 2013

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

DISSENTING:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis




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