STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS May 7, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
PAMELA PERINE, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 14-0709 (BOR Appeal No. 2049121)
(Claim No. 2010135583)
CABELL HUNTINGTON HOSPITAL, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Pamela Perine, by Edwin H. Pancake, her attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Cabell Huntington Hospital, Inc., by
Toni J. Minner, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated July 3, 2014, in which
the Board affirmed a December 20, 2013, Order of the Workers’ Compensation Office of Judges.
In its Order, the Office of Judges affirmed the claims administrator’s July 20, 2012, decision
granting Ms. Perine a 20% permanent partial disability award. In its Order, the Office of Judges
also affirmed the claims administrator’s March 14, 2013, decision denying Ms. Perine’s request
for temporary partial rehabilitation benefits.1 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. Perine worked as a registered nurse for Cabell Huntington Hospital, Inc. On May 28,
2010, Ms. Perine experienced pain in her lower back radiating into her left leg when she was
helping perform a total knee replacement. The claim was held compensable for back sprain. Ms.
Perine had three independent medical evaluations. Ms. Perine underwent laminectomy with
1
Ms. Perine is not appealing the Board of Review and the Office of Judges’ affirming of the
claims administrator’s March 14, 2013, denial for temporary partial rehabilitation benefits.
partial discectomy on the left side at the L4-L5 level on July 21, 2011, and she also underwent a
decompression laminectomy and a posterior spinal fusion at the L4-L5 level on April 10, 2012.
First, Paul Bachwitt, M.D., examined Ms. Perine and found she has 20% whole person
impairment for the lumbar spine. Then, Bruce Guberman, M.D., examined Ms. Perine and
opined that she has 25% whole person impairment of the lumbar spine. Dr. Guberman
recommended an additional 5% permanent partial disability award since Ms. Perine has already
received a 20% award. Third, D. Kelly Agnew, M.D., examined Ms. Perine and determined that
she has 20% whole person impairment Ms. Perine filed an application for a permanent partial
disability award, and on July 20, 2012, the claims administrator granted her a 20% permanent
partial disability award based on the report of Dr. Bachwitt.
The Office of Judges affirmed the claims administrator’s decision and found Ms. Perine
has 20% whole person impairment for the lumbar spine. The Board of Review affirmed the
Order of the Office of Judges. On appeal, Ms. Perine disagrees and asserts that Dr. Guberman is
the only physician that placed her in the proper lumbar category under West Virginia Code of
State Rules Table § 85-20-C (2006) and that the reports of Dr. Bachwitt and Dr. Agnew are
incorrect because they placed her in the wrong lumbar category. Ms. Perine further asserts that
she is entitled to an additional 5% permanent partial disability award as found by Dr. Guberman.
Cabell Huntington Hospital, Inc., maintains that Ms. Perine is not entitled to a 25% permanent
partial disability award and that the preponderance of the evidence, specifically the opinions of
Dr. Bachwitt and Dr. Agnew, demonstrate that she is entitled to a 20% permanent partial
disability award.
The Office of Judges noted that Dr. Bachwitt and Dr. Agnew placed Ms. Perine in
Lumbar Spine Category IV of West Virginia Code of State Rules Table § 85-20-C but Dr.
Guberman placed her in Lumbar Spine Category V of West Virginia Code of State Rules Table §
85-20-C. Dr. Agnew testified that Ms. Perine only has some modest sensory changes, no reflex
changes, no atrophy, and no anatomic radicular motor loss. Dr. Agnew further testified that Dr.
Guberman was wrong to place Ms. Perine into Category V because she does not satisfy the
requirement of significant lower extremity impairment as required for Category V. The Office of
Judges relied on Dr. Agnew’s testimony and found Ms. Perine does not satisfy the requirements
of Lumbar Spine Category V. The Office of Judges found the recommendations of Dr. Bachwitt
and Dr. Agnew to be persuasive and therefore found Ms. Perine has 20% whole person
impairment for the lumbar spine. The Board of Review agreed with the Office of Judges.
After review, we agree with the reasoning of the Office of Judges and the conclusions of
the Board of Review. Dr. Agnew testified that Ms. Perine does not satisfy the Lumbar Spine
Category V requirement of significant lower extremity impairment. Dr. Agnew found that Ms.
Perine walks without a limp and only uses over-the-counter medication during the day and a
homeopathic dose of Flexeril at night. Dr. Agnew testified that Ms. Perine had a successful
fusion and that the guidelines would not even elevate an unsuccessful fusion to Lumbar Spine
Category V. Dr. Agnew and Dr. Bachwitt both placed Ms. Perine into Lumbar Spine Category
IV and both recommended 20% whole person impairment for the lumbar spine.
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: May 7, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II
DISSENTING:
Justice Menis E. Ketchum