                             STATE OF WEST VIRGINIA

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

Claimant Below, Petitioner

vs.)   No. 14-0402 (BOR Appeal No. 2048871)
                   (Claim No. 2011003151)

MARBLE KING INCORPORATED,
Employer Below, Respondent


                             MEMORANDUM DECISION
       Petitioner Larry Williamson, by Jonathan C. Bowman, his attorney, appeals the decision
of the West Virginia Workers’ Compensation Board of Review. Marble King Incorporated, by
Lucinda Fluharty, its attorney, filed a timely response.

        This appeal arises from the Board of Review’s Final Order dated Marcy 27, 2014, in
which the Board affirmed a September 19, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 16, 2012,
decision to grant Mr. Williamson 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. Williamson, a machine operator for Marble King Incorporated, was moving a marble
cutting machine on July 24, 2010, when he felt pain in his lower back. Mr. Williamson was
treated for a lumbar sprain and his claim was held compensable for the same. On October 8,
2012, Mr. Williamson reported to Sushil Sethi, M.D., for an independent medical evaluation. Dr.
Sethi determined that Mr. Wilson was at his maximum degree of medical improvement. Dr.
Sethi did not find any impairment under Table 75 of the American Medical Association’s Guides
to the Evaluation of Permanent Impairment (4th ed. 1993), but found 5% whole person
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impairment based upon range of motion deficits in the lumbar spine. Dr. Sethi then placed Mr.
Williamson under West Virginia Code of State Rules § 85-20-C (2006), for 5% whole person
impairment related to the July 24, 2010, injury. On October 16, 2012, the claims administrator
granted Mr. Williamson a 5% permanent partial disability award based upon the Dr. Sethi’s
independent medical evaluation. Mr. Williamson protested.

       On November 15, 2012, Mr. Williamson reported to Bruce Guberman, M.D., for an
independent medical evaluation. Dr. Guberman determined that Mr. Williamson was at his
maximum degree of medical improvement for his July 24, 2010, injury. Dr. Guberman placed
Mr. Williamson in Lumbar Category II-B from the American Medical Association’s Guides, for
5% whole person impairment. Dr. Guberman found 6% whole person impairment based upon
range of motion deficits in the lumbar spine. He combined the 5% Table 75 impairment with the
6% range of motion impairment for a total of 11% whole person impairment. He then placed Mr.
Williamson in Category II of West Virginia Code of State Rules § 85-20-C, which has an
allowable rating of 5% to 8%. Dr. Guberman adjusted the 11% whole person impairment down
to 8% whole person impairment to fit within Category II.

        On April 15, 2013, Mr. Williamson reported to Victoria Langa, M.D., for an independent
medical evaluation. Dr. Langa found that Mr. Williamson was at his maximum degree of
medical improvement. Dr. Langa opined that Mr. Williamson would not qualify for any Table 75
placement. Dr. Langa further opined that he suffered from 2% whole person impairment related
to the range of motion deficits in his lumbar spine. Dr. Langa then noted that Mr. Williamson
would fall into Lumbar Category II in West Virginia Code of State Rules § 85-20-C. She
adjusted the 2% rating to 5% whole person impairment to fit within the category.

        The Office of Judges found that Mr. Williamson was not entitled to any more than a 5%
permanent partial disability award. The Office of Judges noted that Dr. Guberman was the only
physician that found Table 75 impairment. The Office of Judges further noted that Dr. Guberman
did not provide a rationale for placing Mr. Williamson in Table 75. Because Dr. Guberman did
not explain his Table 75 placement, and the other physicians did not find any Table 75
impairment, the Office of Judges determined that the evidence supported granting Mr.
Williamson no more than a 5% permanent partial disability award. The Board of Review adopted
the findings of the Office of Judges and affirmed its Order.

        We agree with the consistent decisions of the Office of Judges and Board of Review. The
Office of Judges determined that Dr. Langa and Dr. Sethi’s reports were more persuasive than
the report of Dr. Guberman. Because Dr. Guberman’s report represented a deviation from the
other evaluators and his deviation was not explained, it was not in error for the Office of Judges
to refuse to accept his report.

        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.

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                                        Affirmed.


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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