STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
ANGELA A. BELCHER, March 3, 2017
RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 16-0231 (BOR Appeal No. 2050829)
(Claim No. 2012002837)
MYLAN PHARMACEUTICALS, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Angela A. Belcher, by her attorney Christopher J. Wallace, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. Mylan
Pharmaceuticals, Inc., by H. Dill Battle III, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated February 22, 2016, in
which the Board affirmed the September 25, 2015, Order of the Workers’ Compensation Office
of Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 9, 2013,
decision closing the claim for permanent partial disability and granting 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.
Ms. Belcher was injured on July 21, 2011, when she slipped and caught herself with her
arms. The claim was accepted for the compensable diagnoses of sprain of the right shoulder/
upper arm and sprain of the right wrist. Sushil Sethi, M.D., performed an independent medical
evaluation on February 24, 2012. Dr. Sethi noted Ms. Belcher had been treated with cortisone
injections and extensive physical therapy. He observed Ms. Belcher guarding herself with range
of motion in spite of attending over 100 therapy sessions. Dr. Sethi found Ms. Belcher to be self-
limiting in performing activities during the examination. He assessed 8% impairment based on
the range of motion of the upper right extremity.
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On March 22, 2012, the claims administrator awarded Ms. Belcher an 8% permanent
partial disability award based on the report of Dr. Sethi. The claims administrator added reflex
sympathetic dystrophy as a compensable condition on October 23, 2012. In November of 2012,
Ms. Belcher was assessed regarding the need for a spinal cord stimulator and this surgery was
later performed.
Dr. Sethi performed a second independent medical evaluation on August 9, 2013, for the
compensable diagnoses of sprain of the right wrist, reflex sympathetic dystrophy of the right
upper extremity, sprain of the right shoulder/ upper arm, and right mononeuritis. Dr. Sethi noted
Ms. Belcher indicated that she felt good day to day with some general feeling of dysesthesia in
the right arm. On examination, she had no decreased range of motion or neuromuscular deficit.
Dr. Sethi found Ms. Belcher had no loss of motor strength and no loss of sensibility. In his
opinion, the reflex sympathetic dystrophy had no effect on Ms. Belcher’s activities of daily
living, as the spinal cord stimulator had resolved any symptoms related to activities of daily
living. Dr. Sethi assessed 9% upper extremity impairment for the right shoulder. He assessed 0%
impairment for the right wrist sprain, reflex sympathetic dystrophy, and mononeuritis. The 9%
upper extremity impairment was equivalent to 5% whole person impairment. Dr. Sethi noted Ms.
Belcher had already been granted an 8% permanent partial disability award. Therefore, there was
no increase in impairment based on his evaluation.
On October 6, 2013, Dr. Sethi prepared an addendum to his report stating that the spinal
cord stimulator did not affect the impairment rating he assessed. The use of the spinal cord
stimulator was considered in determining any residual effect on Ms. Belcher’s activities of daily
living. Dr. Sethi noted the purpose for using the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (4th ed. 1993) is to provide “an informed estimate of the
degree to which the individuals capacity to carry out daily activities has been diminished”. In his
opinion, there was no additional impairment of Ms. Belcher’s daily activities as a result of the
implantation of the spinal cord stimulator. Based on Dr. Sethi’s opinion, the claims administrator
closed the claim for permanent partial disability and granted no additional permanent partial
disability award on October 9, 2013.
Bruce Guberman, M.D., performed an independent medical evaluation on June 26, 2014.
Ms. Belcher reported having constant pain throughout her entire right arm which was only
partially improved with the spinal cord stimulator. She reported having difficulty with writing,
using a computer, snowboarding, water skiing, snow skiing, driving, bathing, dressing herself,
folding clothes, cooking and sleeping. Dr. Guberman’s impression was chronic post-traumatic
strain of the right shoulder, chronic post-traumatic strain of the right wrist, and complex regional
pain syndrome of the right upper extremity. Dr. Guberman assessed 31% impairment for the
right upper extremity based on range of motion abnormalities of the right thumb and right mid,
ring, and little fingers. He assessed 85% impairment of the right upper extremity due to abnormal
range of motion and sensory loss. He noted the 85% upper right extremity impairment equaled
51% whole person impairment. Dr. Guberman then assessed 2% whole person impairment for a
skin disorder related to the spinal cord stimulator placement. Dr. Guberman assessed a total of
52% impairment of the whole person. In his opinion, 9% impairment for a prior right hand injury
should be deducted leaving 42% impairment. He then deducted the 8% impairment that had
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previously been awarded for the July 21, 2011, injury and determined Ms. Belcher had an
additional 34% whole person impairment attributable to the injury.
Christopher Martin, M.D., performed an independent medical evaluation on September
15, 2014. He found no evidence of atrophy in the right upper extremity and both upper
extremities were the same temperature to touch. Dr. Martin noted Ms. Belcher was
hypersensitive to touch. Range of motion measurements in all joints of the right upper extremity
were described by Ms. Belcher as painful. Dr. Martin requested autonomic studies be completed
prior to issuing a final report. On April 8, 2015, Dr. Martin issued the final report, which
included the results of the autonomic studies. Based on the autonomic studies, Dr. Martin opined
that Ms. Belcher did not have reflex sympathetic dystrophy. He assessed 0% impairment. In his
opinion, the impairment rating assessed by Dr. Guberman was excessive given Ms. Belcher’s
functional status.
Ms. Belcher asserted below that she is entitled to an additional permanent partial
disability award based on the impairment assessed by Dr. Guberman. The Office of Judges did
not agree. It affirmed the claims administrator’s decision to deny an additional permanent partial
disability award on September 25, 2015. The Office of Judges reviewed the medical reports of
Dr. Sethi, Dr. Guberman, and Dr. Martin, as well as a significant number of medical records. The
Office of Judges found Dr. Martin’s report unreliable as he determined Ms. Belcher did not have
reflex sympathetic dystrophy even though that was an accepted, compensable condition. The
Office of Judges also found Dr. Guberman’s report to be unreliable as he assessed the right upper
extremity impairment to be almost as great as if Ms. Belcher’s right upper extremity had been
amputated. Additionally, Dr. Guberman’s opinion was not commiserate with the entirety of the
medical record regarding Ms. Belcher’s use of and problems with her right upper extremity. The
Office of Judges relied on Dr. Sethi’s assessment of impairment. It found that he used the proper
method of evaluation and that his assessment of impairment was the most credible based on the
entirety of the record. The Board of Review affirmed the Office of Judges’ Order in its February
22, 2016, decision.
We agree with the reasoning of the Office of Judges and the conclusions of the Board of
Review. The opinion of Dr. Sethi is the most credible medical opinion regarding impairment. He
evaluated Ms. Belcher before and after the implantation of the spinal cord stimulator. He
explained the effect of the spinal cord stimulator on Ms. Belcher’s activities of daily living.
Based on Dr. Sethi’s opinion, Ms. Belcher has not demonstrated an entitlement to additional
permanent partial disability award due to the July 21, 2011, injury.
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: March 3, 2017
CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
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