STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JEFFERY WILLIAMS,
FILED
Claimant Below, Petitioner December 11, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0986 (BOR Appeal No. 2054220) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2014015427)
GREENBRIER COUNTY COMMISSION,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Jeffery Williams, by Counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Greenbrier County
Commission, by Counsel Melissa M. Stickler, filed a timely response.
The issue on appeal is permanent partial disability. The claims administrator granted no
additional permanent partial disability award on February 21, 2018. The Workers’ Compensation
Office of Judges (“Office of Judges”) affirmed the decision in its April 30, 2019, Order. The Order
was affirmed by the Board of Review on September 24, 2019.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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. Williams, a police deputy, was injured in the course of his employment on November
20, 2013, when he was involved in a motor vehicle accident. Treatment notes from Greenbrier
Medical Center indicate Mr. Williams reported back and chest pain. A thoracic CT scan showed
osteophytic lipping and mild disc space narrowing. A lumbar CT scan showed disc space
narrowing with osteophytic lipping at L3-4, L4-5, and L5-S1. There was facet joint hypertrophy,
degenerative changes, and annular bulging at L3-4 and L4-5. A right shoulder x-ray showed a
metallic foreign body in the shoulder. The Employees’ and Physicians’ Report of injury was
completed that same day. The physician’s section was completed by Greenbrier Valley Medical
Center and indicates Mr. Williams injured his mid and lower back.
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Mr. Williams treated with Lynn Smith, M.D., on December 9, 2013, for significant
headaches and right lumbar radicular pain. Dr. Smith diagnosed occipital neuralgia with muscle
spasms and lumbar radiculopathy. On December 16, 2013, Mr. Williams’s neck symptoms had
significantly improved, and his radicular symptoms had resolved. On December 30, 2013, his neck
pain had resolved. His lumbar symptoms were still present. The claim was held compensable for
lumbar and thoracic sprains on January 2, 2014.
Mr. Williams has a history of lower back problems. A September 30, 2004, lumbar MRI
was performed due to lower back pain and right side radiculopathy. It showed disc herniations at
L3-4 and L4-5 with nerve root compression. Mr. Williams also had minor degenerative changes
and scoliosis. In an October 11, 2004, treatment note, Robert Crowe, M.D., saw Mr. Williams for
low back pain, right sciatica, and right L4-5 disc herniation. Dr. Crowe noted that Mr. Williams
was injured while wrestling a suspect to the ground in September of 2004. Dr. Crowe diagnosed
right sciatica and right L4-5 disc herniation and recommended surgery. On October 29, 2004, Mr.
Williams underwent a right L4-5 microdiscectomy. The pre and post-operative diagnoses were
right sciatica and L4-5 disc herniation. Mr. Williams also had a previous workers’ compensation
claim, number 2005016665, which was held compensable for displaced intervertebral disc and
lumbar sprain. Mr. Williams saw Celia McLay, D.O., on August 9, 2012, for acute back pain. It
was noted that he had a work-related injury in 2004 for which he underwent surgery on the L4-5
disc. Mr. Williams had a good result from surgery and had resumed his regular workout routine.
He reported that two weeks prior, he was playing golf and felt severe pain in his back. Dr. McLay
manipulated Mr. Williams’s lumbar spine, sacral spine, and pelvis. She diagnosed multiple muscle
strains, lumbago, rib cage dysfunction, lumbar dysfunction, sacrum dysfunction, and pelvic
dysfunction.
In the case at bar, a lumbar MRI was performed on May 4, 2014. It showed mild to
moderate broad based disc bulging at L2-3 and mild to moderate broad based disc bulging causing
mild foraminal narrowing at L3-4. At L4-5, there was mild to moderate broad based disc bulging,
mild osteophyte formation, degenerative facet disease, and mild to moderate right foraminal
narrowing with compression of the L4 nerve root. At L5-S1 there was mild broad-based disc
bulging. Mr. Williams underwent a right L4-5 laminectomy and a medial facetectomy with
excision of a disc herniation on February 9, 2015. The pre and post-operative diagnosis was
recurrent L4-5 disc herniation causing radiculopathy.
A. E. Landis, M.D., performed an independent medical evaluation. In the report dated April
26, 2016, he noted Mr. Williams’s prior low back injury and surgery. At the time of the evaluation,
Mr. Williams reported that his pain was mostly in his right hip and lower back. Dr. Landis
diagnosed moderate lumbar degenerative changes and post-operative changes at L4-5. Dr. Landis
opined that Mr. Williams suffered a recurrent L4-5 disc herniation but that he had reached
maximum medical improvement. Dr. Landis assessed 13% for lumbar spine impairment and
apportioned 6% for preexisting conditions. He ultimately recommended 7% impairment for the
lumbar spine. He declined to assess the right knee as it was not a compensable condition in the
claim. The claims administrator granted a 7% permanent partial disability award on June 3, 2016.
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Bruce Guberman, M.D., performed an independent medical evaluation on December 20,
2016, in which he diagnosed chronic post-traumatic lumbar strain with history of an L4-5
laminectomy and chronic post-traumatic thoracic strain. Dr. Guberman placed Mr. Williams in
Category II-E of Table 75 of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed 1993) for 10% impairment. He also found 5% impairment for range
of motion loss for a combined lumbar impairment of 15%. He placed Mr. Landis in Lumbar
Category III from West Virginia Code of State Rules § 85-20-C and adjusted the rating to 13%.
For the thoracic spine, Dr. Guberman placed Mr. Williams in Category II-B from Table 75 for 2%
impairment. He found 6% range of motion impairment for a combined total of 8% impairment.
Dr. Guberman then placed Mr. Williams in Thoracic Category II from West Virginia Code of State
Rules § 85-20-D. Dr. Guberman’s combined impairment rating was 20% WPI.
In a May 17, 2017, addendum to his report, Dr. Landis opined that the thoracic spine is not
part of the claim. Therefore, Dr. Guberman’s finding of 8% impairment was not supported by the
record. Dr. Landis also opined that any right knee impairment preexisted the compensable injury.
On July 20, 2017, the Office of Judges remanded the claims administrator’s decision with
instructions to refer Mr. Williams for another independent medical evaluation. It found that Dr.
Landis failed to evaluate the thoracic spine, a compensable component of the claim, and Dr.
Guberman failed to apportion for preexisting lumbar impairment. On February 21, 2018, the
claims administrator granted no additional permanent partial disability award. The Office of
Judges modified the claims administrator’s decision and added sacroiliac strain to the claim on
April 6, 2018.
On October 3, 2018, Dr. Guberman performed an independent medical evaluation in which
he diagnosed chronic post-traumatic lumbar and thoracic sprains and resolved cervical sprain. Dr.
Guberman placed Mr. Williams in Category II-G of Table 75 of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993) for 12%
impairment. He also found 7% impairment for range of motion loss for a combined lumbar
impairment of 18%. He placed Mr. Williams in Lumbar Category III from West Virginia Code of
State Rules § 85-20-C and adjusted the rating to 13%. Dr. Guberman did not apportion for
preexisting lumbar impairment. For the thoracic spine, Dr. Guberman placed Mr. Williams in
Category II-B from Table 75 for 2% impairment. He found 5% range of motion impairment for a
combined total of 7% impairment. Dr. Guberman then placed Mr. Williams in Thoracic Category
II from West Virginia Code of State Rules § 85-20-D. Dr. Guberman’s combined impairment
rating was 19% whole person impairment.
Dr. Landis completed an addendum to his report on November 4, 2018, in which he stated
that he found no thoracic impairment during his evaluation. Mr. Williams had no thoracic
symptoms or findings, and a thoracic CT scan taken at the time of the injury showed degenerative
changes. Dr. Landis also noted that Dr. Guberman failed to apportion for Mr. Williams’s previous
lumbar injury and surgery.
The Office of Judges affirmed the claims administrator’s grant of no additional permanent
partial disability in its April 30, 2019, Order. It found that the claim was previously remanded with
instructions for a new independent medical evaluation because Dr. Landis failed to rate the thoracic
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spine and Dr. Guberman failed to apportion for preexisting lumbar issues. The Office of Judges
found that Dr. Landis opined in an addendum to his report that Mr. Williams had no thoracic
impairment. He noted that Mr. Williams received very little thoracic spine treatment. Dr. Landis
also reiterated that Mr. Williams has 7% lumbar spine impairment after apportionment for his
preexisting injury and surgery.
The Office of Judges determined that Dr. Guberman failed to apportion for preexisting
lumbar impairment in both of his evaluations. In fact, he did not mention Mr. Williams’s prior
injury or surgery. Mr. Williams underwent lumbar spine surgery in 2004 for a L4-5 disc herniation.
He then experienced intermittent strains and low back pain prior to the compensable injury. The
Office of Judges concluded that Dr. Guberman’s evaluation was unreliable. It found Dr. Landis’s
finding of 7% impairment to be reliable and affirmed the claims administrator’s grant of no
additional permanent partial disability award. The Board of Review adopted the findings of fact
and conclusions of law of the Office of Judges and affirmed its Order on September 24, 2019.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. There are only two evaluators of record, and Dr. Landis was the
only one to apportion for Mr. Williams’s preexisting impairment. Dr. Guberman’s report is not as
reliable
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: December 11, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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