                             STATE OF WEST VIRGINIA

                                                                                   FILED
                          SUPREME COURT OF APPEALS                             November 4, 2015
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
CAROL HORN,                                                                   OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 14-0293 (BOR Appeal No. 2048714)
                   (Claim No. 2010133877)


CABELA’S INC.,

Employer Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Carol Horn, by M. Jane Glauser, her attorney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review. Cabela’s, Inc., by Mark J. Grigoraci, its
attorney, filed a timely response.

       This appeal arises from the Board of Review’s Final Order dated February 25, 2014, in
which the Board affirmed an August 5, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 26, 2012,
decision to grant a 0% 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. Horn, a sales associate for Cabela’s, Inc., was assisting a customer on May 6, 2010,
when she lost her balance walking down stairs and fell on her knees. She also injured her
cervical spine in the process. Ms. Horn was transported to Wheeling General Hospital where she
was treated for her injuries. Ms. Horn was then referred to physical therapist Mark Goode for
treatment. In his evaluation, he noted a range of motion in Ms. Horn’s knee of 130 degrees on
the left side and 120 degrees on the right side. Mr. Goode also noted that Ms. Horn had good
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strength in both quadriceps. Ms. Horn also reported to her treating physician Richard S. Glass,
M.D., on April 7, 2011, and he noted that she was doing better and was back at work. Ms. Horn
complained to Dr. Glass of pain in her legs bilaterally. Dr. Glass opined that her pain could be
due to fibromyalgia. Dr. Glass noted that fibromyalgia was not related to the slip and fall injury
on May 6, 2010. On March 26, 2012, Ms. Horn reported to Victoria Langa, M.D., for an
independent medical examination. Dr. Langa opined that Ms. Horn was at her maximum degree
of medical improvement and had no resulting impairment.

        On September 27, 2012, Ms. Horn reported to Bruce Guberman, M.D., for an
independent medical evaluation. Dr. Guberman found 5% whole person impairment for the left
knee and 5% whole person impairment for the right knee both based upon a weakness of
extension. On February 7, 2013, Ms. Horn reported to Bill Hennessey, M.D., for another
independent medical evaluation. He shared Dr. Langa’s opinion that she was at her maximum
degree of medical improvement and had no resulting impairment. Based upon the reports of Dr.
Langa and Dr. Hennessey, the claims administrator granted Ms. Horn a 0% permanent partial
disability award. Ms. Horn protested.

        The Office of Judges determined that Ms. Horn was not entitled to any more than a 0%
permanent partial disability award. The Office of Judges did not rely on the report of Dr.
Guberman because his evaluation was not as consistent with the evidence in the record as Dr.
Hennessey’s and Dr. Langa’s reports. The Office of Judges noted that the treatment reports
throughout the record indicate that she had full range of motion and good strength in both of her
quadriceps. The Office of Judges noted that her physical therapist, Mark Goode, documented
good strength and range of motion on September 7, 2010, and December 13, 2011. Furthermore,
the evaluation of Dr. Glass on October 11, 2010, showed a normal range of motion and good
strength. Because Dr. Guberman’s evaluation was less consistent with the evidence of record, the
Office of Judges concluded that his report was less reliable. The Board of Review adopted the
findings of the Office of Judges and affirmed its Order.

        We agree with the findings of the Office of Judges and conclusions of the Board of
Review. Dr. Guberman is the only physician that found any ratable impairment. The findings of
Dr. Hennessey and Dr. Langa are consistent with the records of the physical therapist and the
observations of Dr. Glass. Dr. Guberman’s evaluation is not consistent with the remainder of the
evidence in the record. Because the evidence is more consistent with Dr. Hennessey’s and Dr.
Langa’s opinions, it was not in error for the Office of Judges and Board of Review to rely on
their reports.

        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.
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ISSUED: November 4, 2015

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




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