STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS November 10, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
CAROLYN S. MOORE, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-0952 (BOR Appeal No. 2048174)
(Claim No. 2010134307)
WOODRIDGE ASSISTED LIVING, LLC,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Carolyn S. Moore, by George Zivkovich, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Woodridge Assisted Living, LLC,
by Steven K. Wellman, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated September 5, 2013, in
which the Board affirmed a February 7, 2013, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s June 28, 2011,
decision which denied Ms. Moore a permanent partial disability award and instead granted Ms.
Moore a 1% 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. Moore, a certified nursing assistant, was injured in the course of her employment on
April 7, 2010, while putting surgical hose on a patient. Her claim was held compensable for
sprain/strain of the metacarpophalangeal joint, right carpal tunnel syndrome, right transient
arthropathy, and ganglion of the right joint. Ms. Moore was initially treated with a splint,
medication, and rest. Luis Bolano, M.D., determined in a December 13, 2010, treatment note that
surgery would be necessary. He performed a right carpal tunnel release, right thumb
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carpometacarpal arthroplasty and excision of the trapezium, and excision of the ganglion in the
right wrist on February 4, 2011. Ms. Moore underwent physical therapy and by June 5, 2011, her
treating physician, Donna Davis, D.O., determined that she was doing well, had returned to
work, and had normal range of motion.
Ms. Moore underwent three independent medical evaluations in order to determine the
amount of permanent impairment she sustained as a result of her compensable injury. The first
evaluation was performed by James Dauphin, M.D., on May 25, 2011. Dr. Dauphin found
normal range of motion of the wrist and thumb. He noted pain with attempted pinch and grab but
no loss of sensation in the hand. Ms. Moore had reached maximum medical improvement. He
assessed 0% impairment for carpal tunnel syndrome because there was no range of motion loss
and no loss of sensation. She also received 0% impairment for sprain of the metacarpophalangeal
joint, right transient arthropathy, and ganglion of right joint.
A second independent medical evaluation was performed by Bruce Guberman, M.D., on
November 1, 2011. Dr. Guberman diagnosed post-traumatic right thumb carpometacarpal
arthritis, status post right volar ganglion cyst, and post-traumatic right carpal tunnel syndrome.
Ms. Moore denied any numbness or tingling in her right hand. Dr. Guberman found that she had
reached maximum medical improvement. He assessed 8% upper extremity impairment and 10%
impairment for carpal tunnel syndrome for a combined total of 17% whole person impairment.
A final independent medical evaluation was performed by Prasadarao Mukkamala, M.D.,
on October 3, 2012. Dr. Mukkamala found normal range of motion of the right wrist. He
diagnosed right thumb sprain and found that Ms. Moore had reached maximum medical
improvement. He assessed 1% impairment for the right thumb and 0% impairment for carpal
tunnel syndrome. Dr. Mukkamala disagreed with Dr. Guberman’s assessment because he did not
find range of motion findings as restrictive as Dr. Guberman noted. Further, he found no
symptoms referable to carpal tunnel syndrome.
The claims administrator denied Ms. Moore a permanent partial disability award on June
28, 2011. The Office of Judges reversed the decision in its February 7, 2013, Order and granted
Ms. Moore a 1% permanent partial disability award for the right thumb. The Office of Judges
found that Dr. Guberman was the only evaluator of record to find impairment for carpal tunnel
release. Further, Dr. Davis, Ms. Moore’s treating physician, stated in a May 11, 2011, treatment
note that she had normal sensation without residuals from her carpal tunnel release. Dr.
Guberman’s assessment of 10% impairment for carpal tunnel syndrome was therefore
determined to be inconsistent with the medical evidence of record. The Office of Judges
concluded that a preponderance of the evidence indicated that Ms. Moore sustained 1%
impairment for her right thumb injury.
The Board of Review adopted the findings of fact and conclusions of law of the Office of
Judges and affirmed its Order in its September 5, 2013, decision. This Court agrees with the
reasoning of the Office of Judges and the conclusions of the Board of Review. The evidentiary
record indicates that Ms. Moore is entitled to a 1% permanent partial disability award for her
compensable right thumb injury.
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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: November 10, 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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