STATE OF WEST VIRGINIA
IN THE SUPREME COURT OF APPEALS
Dexter L. Gore, FILED
March 28, 2013
Petitioner released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs.) No. 11-0612 (Board of Review Appeal No. 2045475) OF WEST VIRGINIA
The Insurance Commissioner of West Virginia
in its capacity as Administrator of the Old Fund,
and
Boone County Parks and Recreation Commission,
Respondents
MEMORANDUM DECISION
The Petitioner herein and claimant below, Dexter L. Gore, appeals from an order
entered March 31, 2011, by the Workers’ Compensation Board of Review, which
affirmed the decision of the Workers’ Compensation Office of Judges dated January 4,
2011. The Administrative Law Judge’s decision affirmed the Claims Administrator’s
order of January 13, 2010, which granted a thirteen percent permanent partial disability
award to Petitioner. Herein, Petitioner asserts that he is entitled to an additional five
percent permanent partial disability award. The appeal was timely perfected by counsel,
and the appendix record accompanied the petition. The West Virginia Insurance
Commissioner, in its capacity as administrator of the Old Fund, filed its response. Based
upon the parties’ written submissions and oral arguments, the portions of the record
designated for our consideration, and the pertinent authorities, we find that the Board of
Review did not err in affirming the decision of the Workers’ Compensation Office of
Judges and the Claims Administrator’s order finding that the Petitioner was entitled to a
thirteen percent permanent partial disability award. Accordingly, we affirm the
underlying decision. This Court further finds that this case presents no new or significant
questions of law, and, thus, it will be disposed of through a memorandum decision as
contemplated by Rule 21 of the Rules of Appellate Procedure.
Petitioner, a superintendent with the Boone County Parks and Recreation
Commission, injured his lower back on March 1, 1999, when he was picking up cinder
blocks. His claim was held compensable for lumbosacral sprain (diagnosis code 846.0)
by order of the West Virginia Bureau of Employment Programs on April 5, 1999.
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Petitioner was provided with conservative treatment of doctor’s visits, medications and
physical therapy. Eventually, Dr. Schmidt, Petitioner’s treating physician, requested
authorization for surgery. The surgery, a lumbar laminectomy and discectomy, was
performed at Charleston Area Medical Center. Petitioner returned to work six months
after his injury.
Petitioner was seen by Dr. Ramanathan Padmanaban in October 2009, for the
purpose of an independent medical evaluation (“IME”). Dr. Padmanaban found Petitioner
to be at maximum medical improvement and determined that Petitioner was ready for an
impairment rating. Dr. Padmanaban determined Petitioner’s impairment rating using the
AMA Guide Fourth Edition as well as Rule 20, Section VII tables. Dr. Padmanaban
asserted that using the range of motion model from AMA Guide Fourth Edition,
Petitioner’s impairment rating was eighteen percent whole person impairment. Further,
using Rule 20, Section VII tables, § 85-20-C, Petitioner was at lumbar category III, which
gave him a range of ten to thirteen percent whole person impairment. Dr. Padmanaban
went on to assert that since Petitioner’s impairment using the range of motion modes was
eighteen percent and he had a lumbar laminectomy and discectomy and also still had
residual symptoms, that he would rate him as thirteen percent whole person impairment
because West Virginia Workers’ Compensation uses Rule 20, Section VII tables for
impairment rating. The approved patient history form for back pain was completed by
Mr. Padmanaban at the time of the IME. The approved back examination form was also
completed by Dr. Padmanaban. Thereafter, on January 13, 2010, Petitioner was given a
thirteen percent permanent partial disability award. Petitioner appealed to the Office of
Judges.
Upon appeal, the Administrative Law Judge (“ALJ”) asserted in the January 4,
2011 decision that “claimant’s counsel submitted a closing argument contending that
Rule § 85-20-64.1 is unlawful since it provides for the reduction of permanent partial
disability assessments based upon preconceived ranges of impairment regardless of the
extent of medical impairment the claimant actually received. Therefore, claimant’s
counsel contends the claimant is entitled to an 18% permanent partial disability award as
opposed to a 13% permanent partial disability award.” The ALJ opined that the “claimant
was granted a 13% award in accordance with the recommendation of Dr. Padmanaban,
who properly referenced the AMA Guides, Fourth Edition and Rule 20. In addition, Dr.
Padmanaban conducted a complete and thorough evaluation of the claimant and his
medical records.” The ALJ also stated that there was “no medical evidence of record to
refute the findings and conclusions of Dr. Padmanaban” and there was also “no evidence
to indicate the report of Dr. Padmanaban is unreliable.” The ALJ concluded that “[s]ince
the date of the award examination was after June 14, 2004, Rule 20 is controlling” and
that the OOJ “has no authority to determine the legality of Rule 20”; therefore, “[u]pon
consideration of the aforesaid, a preponderance of the evidence would dictate the Claim
Administrator’s Order of January 13, 2010, should be affirmed.” The Board of Review
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also affirmed the Decision of the Office of Judges which affirmed the Claims
Administrator’s order of January 13, 2010. Petitioner appeals that order.
When the West Virginia Supreme Court grants an appeal from the Workers’
Compensation Board of Review, review of the Board’s final order is guided by West
Virginia Code § 23-5-15 (2005), which directs that:
(b) [i]n reviewing a decision of the board of review, the supreme court of
appeals shall consider the record provided by the board and give deference
to the board’s findings, reasoning and conclusions[.]
(c) If the decision of the board represents an affirmation of a prior ruling by
both the commission and the office of judges that was entered on the same
issue in the same claim, the decision of the board may be reversed or
modified by the supreme court of appeals only if the decision is in clear
violation of constitutional or statutory provision, is clearly the result of
erroneous conclusions of law, or is based upon the board’s material
misstatement or mischaracterization of particular components of the
evidentiary record. The court may not conduct a de novo re-weighing of the
evidentiary record. If the court reverses or modifies a decision of the board
pursuant to this subsection, it shall state with specificity the basis for the
reversal or modification and the manner in which the decision of the board
clearly violated constitutional or statutory provisions, resulted from
erroneous conclusions of law, or was based upon the board’s material
misstatement or mischaracterization of particular components of the
evidentiary record.
West Virginia Code § 23-5-15(b, c).
West Virginia Code § 23-4-6(i) (2005) provides “once the degree of medical
impairment has been determined that degree of impairment shall be the degree of
permanent partial disability that shall be awarded to the claimant.” Although West
Virginia Code § 23-4-6(i) requires that a claimant’s permanent partial disability award be
equal to his whole person medical impairment rating, the Legislature left the method of
determining whole person medical impairment to the Board of Managers. The Board of
Managers adopted Rules §§ 85-20-64.1 and 64.2 which provide the following:
64.1. Pursuant to West Virginia Code § 23-4-3b(b), the Commission hereby
adopts the following ranges of permanent partial disability for common
injuries and diseases. Permanent partial disability assessments shall be
determined based upon the range of motion models contained in the Guides
Fourth. Once an impairment level has been determined by range of motion
assessment, that level will be compared with the ranges set forth below.
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Permanent partial disability assessments in excess of the range provided in
the appropriate category as identified by the rating physician shall be
reduced to within the ranges set forth below:
64.2. Lumbar Spine Impairment: The range of motion methodology for
assessing permanent impairment shall be used. However, a single injury or
cumulative injuries that lead to a permanent impairment to the Lumbar
Spine area of one's person shall cause an injured worker to be eligible to
received permanent partial disability award with the ranges identified in
Table 85-20-C. The rating physician must identify the appropriate
impairment category and then assign an impairment rating within the
appropriate range designated for that category.
Id. (emphasis added).
Petitioner argues that although the Legislature gives the Commission authority to
“adopt standards for the evaluation of claimants and the determination of a claimant’s
degree of whole body medical impairment” the Legislature clearly intended that a
claimant be compensated based upon medical impairment personal to him. Petitioner
contends that Rule §§ 85-20-64.1 and 64.2 are in direct conflict with W. Va. Code § 23
4-6(i). Petitioner avers that each claimant is to be compensated commensurate with the
degree of his medical impairment, not a preconceived estimate of impairment based upon
diagnostic codes. He argues that Tables 85-20-a, b and c base permanent partial disability
awards upon diagnosis rather than actual wholeperson medical impairment specific to the
claimant.
Petitioner contends that similar diagnosis-related estimates of impairment have
already been considered by the Court and found to be in direct conflict with specific
unambiguous Workers’ Compensation statutes. Repass v. Workers’ Compensation
Division, 212 W.Va. 86, 569 S.E.2d 162 (2002). In Repass, this Court concluded that a
Diagnosis Related Estimate Model of permanent partial disability conflicts with “the
proper time for making an impairment rating, the proper treatment of progressive injuries,
the procedure for reopening a claim, and the consideration of a second injury.” The Court
ruled that any medical examination conducted using a Diagnosis Related Estimate of
impairment is “invalid and unreliable.”
It is fundamental that the Legislature may delegate to an administrative agency the
power to make rules and regulations to implement the statute under which the agency
functions. In exercising that power, however, an administrative agency may not issue a
regulation which is inconsistent with, or which alters or limits its statutory authority.
Rowe v. W. Va. Dept. of Corrections, 170 W. Va. 230, 233, 292 S.E.2d 650, 653 (1982).
We stated this principle in Eastern Gas & Fuel Associates v. Hatcher, 144 W.Va. 229,
237, 107 S.E.2d 618, 623 (1959):
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“But, an administrative body may not issue a regulation ‘which is out of
harmony with, or which alters, or limits, the statute being administered, . . .
.’ 42 Am.Jur. 358, Public Administrative Law, Section 53. To the same
effect is 73 C.J.S. 415, Public Administrative Bodies and Procedure,
Section 94 and many cases cited under these two sections respectively.”
See also 1A Michie’s Jurisprudence, Administrative Law § 5 (1980). This Court has held
that:
Any rules or regulations drafted by an agency must faithfully reflect the
intention of the Legislature, as expressed in the controlling legislation.
Where a statute contains clear and unambiguous language, an agency’s
rules or regulations must give that language the same clear and
unambiguous force and effect that the language commands in the statute.
Syl. pt. 4, Maikotter v. University of West Virginia Bd. of Trustees/West Virginia Univ.,
206 W.Va. 692, 527 S.E.2d 802 (1999). An administrative agency’s rules and regulations
must also be reasonable and conform to the laws enacted by the Legislature. Anderson &
Anderson Contractors, Inc. v. Latimer, 162 W.Va. 803, 257 S.E.2d 878, 881 (1979);
Walls v. Miller, 162 W.Va. 563, 251 S.E.2d 491 (1978); 1 Am.Jur.2d Administrative Law
§ 126 (1962).
The Board of Managers was expressly charged with the duty of adopting the
ranges for permanent partial disability assessments in W. Va. Code § 23-4-3b. That
statute provides the following:
§ 23-4-3b. Creation of health care advisory panel
(a) The commission shall establish a health care advisory panel
consisting of representatives of the various branches and specialties among
health care providers in this state which shall be in existence until
termination of the commission. There shall be a minimum of five members
of the health care advisory panel who shall receive reasonable
compensation for their services and reimbursement for reasonable actual
expenses. Each member of this panel shall be provided appropriate
professional or other liability insurance, without additional premium, by the
state board of risk and insurance management created pursuant to article
twelve, chapter twenty-nine of this code. The panel shall:
(1) Establish guidelines for the health care which is reasonably
required for the treatment of the various types of injuries and occupational
diseases within the meaning of section three of this article;
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(2) Establish protocols and procedures for the performance of
examinations or evaluations performed by physicians or medical examiners
pursuant to sections seven-a and eight of this article;
(3) Assist the commission in establishing guidelines for the
evaluation of the care provided by health care providers to injured
employees for purposes of section three-c of this article;
(4) Assist the commission in establishing guidelines regarding the
anticipated period of disability for the various types of injuries pursuant to
subsection (b), section seven-a of this article; and
(5) Assist the commission in establishing appropriate professional
review of requests by health care providers to exceed the guidelines for
treatment of injuries and occupational diseases established pursuant to
subdivision (1) of this section.
(b) In addition to the requirements of subsection (a) of this section,
on or before the thirty-first day of December, two thousand three, the board
of managers shall promulgate a rule establishing the process for the
medical management of claims and awards of disability which includes,
but is not limited to, reasonable and standardized guidelines and
parameters for appropriate treatment, expected period of time to reach
maximum medical improvement and range of permanent partial disability
awards for common injuries and diseases or, in the alternative, which
incorporates by reference the medical and disability management
guidelines, plan or program being utilized by the commission for the
medical and disability management of claims, with the requirements,
standards, parameters and limitations of such guidelines, plan or program
having the same force and effect as the rule promulgated in compliance
herewith. (emphasis added).
Based upon the requirements of W. Va. Code § 23-43b, the Board of Managers
must adopt rules that include, but are not limited to, reasonable and standardized
guidelines and parameters for range of permanent partial disability awards. We find that
the Board of Manager’s decision to determine impairment based upon AMA Range of
Motion criteria found in the Fourth Edition of the AMA Guides is within its discretion to
adopt rules to evaluate each claimant’s medical impairment as intended by the
Legislature. The Board of Manager’s adoption of Rules §§ 85-20-64.1 and 64.2 and
Tables 85-20-a, b and c, is therefore consistent with the intention of the Legislature as
expressed in W. Va. Code § 23-4-6(i). See Syl. pt. 16, Simpson v. West Virginia Office of
Insurance Commissioner, 223 W. Va. 495, 678 S.E.2d 1 (2009)(“W. Va. C.S.R. Table §
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85-20-C (2004) is valid and is a proper exercise of the rule-making authority delegated to
the Workers’ Compensation Board of Managers by the Legislature in W. Va. Code § 23
4-3b(b) (2005)(Repl. Vol. 2005).”).
Once whole person medical impairment has been calculated using the Range of
Motion Model of Impairment found in the 4th Edition of the AMA Guides, West Virginia
Code § 23-4-6(i) directs that the claimant be compensated with a permanent partial
disability award in the same amount as the whole person medical impairment rating. In
this specific claim, Dr. Ramanathan Padmanaban concluded that Petitioner has an
eighteen percent whole person medical impairment. Further, using Rule 20, Section VII
tables, § 85-20-C, Dr. Padmanaban properly found Petitioner to be at lumbar category III,
which gave him a range of ten to thirteen percent whole person impairment. Dr.
Padmanaban properly referenced the AMA Guides, Fourth Edition and Rule 20, and
conducted a complete and thorough evaluation of Petitioner and his medical records.
There was no medical evidence of record to refute the findings and conclusions of Dr.
Padmanaban and there was also no evidence to indicate the report of Dr. Padmanaban is
unreliable.
Therefore, for the foregoing reasons, we affirm the West Virginia Board of
Review’s order entered March 31, 2011, which affirmed the decision of the Workers’
Compensation Office of Judges dated January 4, 2011, and the Claims Administrator’s
order of January 13, 2010, which granted a thirteen percent permanent partial disability
award to the Petitioner.
Affirmed.
ISSUED: March 28, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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