                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                              March 18, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
TIMOTHY G. HAUGHT,                                                            OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 12-0785	 (BOR Appeal No. 2046752)
                   (Claim No. 2006060809)

UNITED CONSTRUCTION COMPANY, INC.,
Employer Below, Respondent


                             MEMORANDUM DECISION
        Petitioner Timothy G. Haught, by M. Jane Glauser, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. United Construction Company,
Inc., by Lucinda Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated June 1, 2012, in which
the Board affirmed a December 13, 2011, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges reversed the claims administrator’s October 6, 2010, decision
granting Mr. Haught no additional 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.

       Mr. Haught sustained multiple injuries on October 27, 2006, and his claim was held
compensable for lateral epicondylitis of the elbow, sacroiliac sprain, arm contusion, lumbar
radiculopathy, and aggravation of pre-existing spondylolisthesis. On July 7, 2008, James
Dauphin, M.D., performed an independent medical evaluation and recommended a 10%
permanent partial disability award for the injuries to Mr. Haught’s lumbar spine. On February
16, 2009, Victoria Langa, M.D., performed an independent medical evaluation and
recommended an 8% permanent partial disability award for the injuries to Mr. Haught’s lumbar
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spine. On September 24, 2009, Bruce Guberman, M.D., determined that Mr. Haught had not yet
reached maximum medical improvement with regard to the injuries to his lumbar spine.
Following Dr. Guberman’s report, the Office of Judges determined that a prior permanent partial
disability award granted for Mr. Haught’s lumbar spine injuries was premature. On September
24, 2010, Sushil Sethi, M.D., performed an independent medical evaluation. After determining
that Mr. Haught had reached maximum medical improvement with regard to the lumbar spine, he
recommended a 5% permanent partial disability award for Mr. Haught’s lumbar spine injuries.
On October 6, 2010, the claims administrator granted Mr. Haught no additional permanent
partial disability award.

        In its Order reversing the October 6, 2010, claims administrator’s decision, the Office of
Judges held that the evidence of record establishes that Mr. Haught has 5% whole person
impairment as a result of his compensable injuries. Mr. Haught disputes this finding and asserts
that the evidence of record demonstrates that he is entitled to an increased permanent partial
disability award for his compensable injuries.

        The Office of Judges found that Dr. Sethi’s report is the only report of record to evaluate
Mr. Haught’s whole person impairment after he had reached maximum medical improvement,
and therefore placed significant weight on Dr. Sethi’s conclusions. On appeal, Mr. Haught seeks
a decision relying upon the opinions of Dr. Dauphin and Dr. Langa. However, as was noted by
the Office of Judges, both Dr. Dauphin and Dr. Langa attempted to determine Mr. Haught’s
whole person impairment before he had reached maximum medical improvement. Further, the
Office of Judges found that Mr. Haught’s argument that he is entitled to another independent
medical evaluation for consideration of all his compensable conditions, which he again makes on
appeal to this Court, to be unpersuasive. Dr. Sethi’s independent medical evaluation was
performed well after all of the compensable conditions had been added to the claim and there is
no indication that he did not thoroughly evaluate Mr. Haught’s condition. The Board of Review
adopted the Office of Judges’ findings of fact and conclusions of law in its June 1, 2012,
decision. 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.
                                                                                        Affirmed.
ISSUED: March 18, 2014

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

DISSENTING:
Menis E. Ketchum
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