                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                               June 9, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
JEFFREY A. SCARBRO,                                                           OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0107 (BOR Appeal No. 2047277)
                   (Claim No. 2011005032)

BRODY MINING, LLC,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Jeffrey A. Scarbro, by Reginald D. Henry, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Brody Mining, LLC, by Matthew
L. Williams, its attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated December 5, 2012, in
which the Board affirmed a May 30, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 30,
2010, decision which granted a 5% 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. Scarbro, a forklift operator, was injured in the course of his employment when he fell
backwards onto a piece of machinery while dislodging a bag of rock dust on July 20, 2010. His
claim was held compensable for lumbar sprain/strain. Medical records dating back as far as 1999
indicate Mr. Scarbro has a long history of back problems including at least three previous work-
related injuries. MRIs and x-rays taken prior to the compensable injury show degenerative
changes and bulging discs in the lower lumbar spine.

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        The claims administrator granted Mr. Scarbro a 5% permanent partial disability award on
December 30, 2010, based upon a report by Paul Bachwitt, M.D. Bruce Guberman, M.D.,
performed an independent medical evaluation on August 29, 2011. He noted that Mr. Scarbro
had an episode of lower back pain ten years prior but stated that there were no other back injuries
or previous problems. He diagnosed lumbar radiculitis, lumbosacral spondylosis without
myelopathy, and displacement of intervertebral disc without myelopathy and recommended the
conditions be added to the claim. For the compensable condition of lumbar sprain/strain Dr.
Guberman assessed 8% impairment. He opined that if the diagnosed conditions were
compensable components of the claim, he would recommend 13% whole person impairment.
Marsha Bailey, M.D., performed an independent medical evaluation on December 13, 2011. She
noted that Mr. Scarbro has a long history of back injuries and degenerative changes. She found
that he was at maximum medical improvement for his compensable condition and assessed 5%
whole person impairment. She apportioned 3% to pre-existing degenerative conditions and the
remaining 2% to the work-related injury.

        The Office of Judges affirmed the claims administrator’s decision in its May 30, 2012,
Order. It found that the claim was held compensable for a lumbar sprain and a request to add
additional conditions to the claim had previously been denied. The Office of Judges concluded
that the evidence established that Mr. Scarbro has a long history of pre-existing back problems,
injuries, and degenerative conditions. Dr. Guberman’s opinion was found to be unpersuasive.
Though he found an additional 5% impairment for lumbar radiculitis, lumbosacral spondylosis
without myelopathy, and displacement of intervertebral disc without myelopathy, those
conditions are not compensable components of the claim and cannot be considered for a
permanent partial disability award. The Office of Judges also determined that he was unaware of
Mr. Scarbro’s pre-existing back problems and failed to apportion his recommended 8%
impairment for lumbar sprain/strain for the pre-existing conditions. Dr. Bailey’s report was
found to be more persuasive because she had a more complete understanding of Mr. Scarbro’s
medical history and she apportioned for pre-existing back conditions. Dr. Bachwitt’s report also
indicated he was aware of, and apportioned for, the pre-existing back conditions. The Office of
Judges therefore held that Mr. Scarbro was entitled to no more than a 5% permanent partial
disability award.

       The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its December 5, 2012, decision. We agree with the reasoning
and conclusions of the Board of Review. The evidentiary record shows that Mr. Scarbro
sustained no more than 5% permanent impairment as the result of his compensable injury.

        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 9, 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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