Phyllis Harrison v. W. Va. Office of Insurance Commissioner/Phyllis Harrison d/b/a Phyllis's Hair Boutique

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS FILED
February 5, 2013

RORY L. PERRY II, CLERK

PHYLLIS HARRISON, SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Claimant Below, Petitioner

vs.) No. 11-0735 (BOR Appeal No. 2045369)
(Claim No. 2008031332)

WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent

and

PHYLLIS HARRISON d/b/a PHYLLIS’S HAIR BOUTIQUE,
Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Phyllis Harrison, by William Gerwig III, her attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. Phyllis Harrison d/b/a Phyllis’s
Hair Boutique, by Bradley Crouser, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated April 26, 2011, in
which the Board affirmed a November 19, 2010, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s October 5, 2009,
decision granting Ms. Harrison a 14% 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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 Ms. Harrison was working as a self-employed hairstylist when she suffered a work-
related injury to both shoulders on October 25, 2007. On July 7, 2009, Dr. Guberman performed
an independent medical evaluation and recommended a 16% permanent partial disability award
for the bilateral shoulder injury. Both Dr. Mukkamala and Dr. Mir recommended a 14%
permanent partial disability award on August 4, 2009, and April 12, 2010, respectively.

In its Order affirming the October 5, 2009, claims administrator’s decision, the Office of
Judges held that Ms. Harrison is entitled to no more than a 14% permanent partial disability
award for her compensable injuries. Ms. Harrison disputes this finding and asserts, per the
opinion of Dr. Guberman, that she is entitled to an additional 2% permanent partial disability
award, for a total permanent partial disability award of 16%.

In its Order, the Office of Judges noted that both Dr. Mukkamala’s and Dr. Mir’s 14%
permanent partial disability award recommendations were made after Dr. Guberman’s 16%
recommendation. The Office of Judges further noted that Ms. Harrison had been receiving
physical therapy at the time of Dr. Mukkamala’s evaluation. The Office of Judges then found
that based upon the record as a whole, Dr. Mukkamala’s and Dr. Mir’s recommendations of a
14% permanent partial disability award are the most reliable estimates of Ms. Harrison’s whole
person impairment resulting from the compensable injuries. The Board of Review reached the
same reasoned conclusion in its decision of April 26, 2011. 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
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: February 5, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

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