STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS September 18, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
DEBORA L. WHITE, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-1155 (BOR Appeal No. 2048384)
(Claim No. 970061234)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
WEIRTON MEDICAL CENTER, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Debora L. White, by M. Jane Glauser, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. The West Virginia Office of the
Insurance Commissioner, by Jon Snyder, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated October 25, 2013, in
which the Board affirmed an April 22, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s March 7, 2012,
decision granting Ms. White 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.
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On May 6, 1997, Ms. White sustained multiple injuries when a patient she was assisting
fell on top of her. Neither the initial report of injury nor the initial Order approving the claim is
contained in the evidentiary record. However, it appears that Ms. White sustained compensable
injuries to her left hip and left ankle, both of which required surgical repair. On November 3,
2006, the Office of Judges granted Ms. White a 24% permanent partial disability award for the
compensable injuries to her left hip and left ankle, and this award was subsequently affirmed by
both the Board of Review and this Court. On October 30, 2008, Bruce Guberman, M.D.,
performed an independent medical evaluation for the purpose of evaluating Ms. White for a
possible permanent total disability award. In addition to the injuries sustained on May 6, 1997,
he evaluated the amount of permanent impairment arising from three other, separate, work-
related injuries. With respect to the May 6, 1997, left hip and left ankle injuries and resultant
surgical procedures, he determined that Ms. White sustained 33% whole person impairment,
with 25% impairment attributable to the left hip and 10% impairment attributable to the left
ankle. Based upon Dr. Guberman’s independent medical evaluation, the claim was reopened for
further consideration of permanent partial disability benefits on June 28, 2010.
On January 9, 2012, Victoria Langa, M.D., performed an independent medical
evaluation. She opined that Ms. White sustained 20% whole person impairment as a result of the
left hip surgery, 4% whole person impairment as a result of the left ankle surgery, and 1% whole
person impairment for inversion/eversion of the left ankle. On March 7, 2012, the claims
administrator determined that Ms. White is not entitled to an additional permanent partial
disability award for the compensable injuries to her left hip and left ankle.
In its Order affirming the March 7, 2012, claims administrator’s decision, the Office of
Judges held that Ms. White sustained 24% whole person impairment as a result of her
compensable May 6, 1997, injuries and has therefore been fully compensated though the
November 3, 2006, 24% permanent partial disability award. Ms. White disputes this finding and
asserts that because the claim was reopened based upon Dr. Guberman’s evaluation, she is
entitled to a total permanent partial disability award of 33% based upon his opinion.
The Office of Judges found that Dr. Langa’s report is the most persuasive report of
record. In making its determination, the Office of Judges took note of the fact that Dr. Langa’s
examination took place more than three years after the examination performed by Dr. Guberman.
The Office of Judges further noted that when utilizing the combined values chart of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed.
1993), the individual impairment ratings assigned to the left hip and left ankle by Dr. Langa
equate to 24% whole person impairment. The Office of Judges then found that because Ms.
White has already received a 24% permanent partial disability award arising from the injury to
and subsequent surgical procedures performed on the left hip and left ankle, she has been fully
compensated for the permanent impairment arising from these body parts. The Board of Review
reached the same reasoned conclusions in its decision of October 25, 2013. 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
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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: September 18, 2014
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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