Pilgrim's Pride Corporation of West Virginia v. Becky Bell

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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
PILGRIM’S PRIDE CORPORATION OF WEST VIRGINIA,
Employer Below, Petitioner
v.) No. 25-ICA-218 (JCN: 2019000818)
BECKY BELL,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Pilgrim’s Pride Corporation of West Virginia (“Pilgrim’s Pride”) appeals
the April 23, 2025, order of the Workers’ Compensation Board of Review (“Board”).
Respondent Becky Bell timely filed a response.1 Pilgrim’s Pride did not reply. The issue
on appeal is whether the Board erred in reversing the claim administrator’s order, which
granted a 13% permanent partial disability (“PPD”) award, and instead granting an
additional 20% PPD award for a total award of 33% PPD.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Ms. Bell was employed by Pilgrim’s Pride as a box maker on the day shift. Ms.
Bell’s job duties involved pulling plastic liners from a roll and using them to line boxes.
On June 12, 2018, Ms. Bell felt a pain in her right shoulder while pulling liners off the roll
and lining boxes at a fast pace.
On May 30, 2019, the claim administrator issued an order holding the claim
compensable for right shoulder strain, right carpal tunnel syndrome, and cervical region
radiculopathy.
On July 22, 2020, Joseph Grady, M.D., evaluated Ms. Bell, and considered the
compensable conditions of right shoulder strain, right carpal tunnel syndrome, and cervical
region radiculopathy. Dr. Grady opined that Ms. Bell had reached maximum medical
improvement (“MMI”) for right shoulder strain and right carpal tunnel syndrome.
1 Pilgrim’s Pride is represented by H. Dill Battle III, Esq. Ms. Bell is represented by
Christopher J. Wallace, Esq.
FILED
October 24, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

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However, Dr. Grady opined that Ms. Bell was not at MMI for cervical radiculopathy,
noting that if further treatment was to be performed for the condition, it would be
appropriate to delay an impairment rating for the right shoulder and carpal tunnel syndrome
since the cervical radiculopathy is a pre-dominant factor. Dr. Grady stated that he would
not apportion for any preexisting conditions, and he did not believe Ms. Bell was at MMI.
By order dated September 18, 2020, the claim administrator approved a request for
cervical discectomy and fusion at C5-C6 and C6-C7. On September 27, 2021, the claim
administrator approved a request for right subacromial decompression, open tenodesis of
biceps tendon, and Mumford procedure.2
On August 14, 2023, Jennifer Lultschik, M.D., performed an independent medical
evaluation (“IME”) of Ms. Bell at the request of Pilgrim’s Pride. Dr. Lultschik assessed
right shoulder strain, right carpal tunnel syndrome, and radiculopathy of the cervical
region. Dr. Lultschik opined that the diagnosis of right shoulder strain is causally related
to the compensable injury. In contrast, Dr. Lultschik concluded that cervical radiculopathy
is causally unrelated to the work injury and is instead due to the compression of spinal
nerve roots by facet joint hypertrophy, disc bulges, and other changes of chronic
degenerative disease in the cervical spine. Dr. Lultschik also diagnosed chronic
sensorimotor axonal polyneuropathy based on the EMG/NCS studies of September 19,
2018, and opined that right carpal tunnel syndrome was unrelated to the work injury. Dr.
Lultschik placed Ms. Bell at MMI for the right shoulder strain injury that resulted from the
work injury. Additionally, Dr. Lultschik stated that because Ms. Bell had not been in active
treatment for more than a year, she was also at MMI for right carpal tunnel syndrome and
radiculopathy of the cervical region.
Using the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993) (“Guides”), and Table 85-20-E, Dr. Lultschik found a total of
25% WPI and recommended 13% impairment for the compensable cervical spine injury
and surgery and apportioned 12% impairment to preexisting asymptomatic chronic right
C6 nerve root compression. For right shoulder strain, Dr. Lultschik assessed 3% WPI for
loss of range of motion and noted that the uninjured left shoulder also had 3% WPI; thus,
she subtracted the 3% WPI for the uninjured left shoulder, leaving 0% WPI for the right
shoulder strain. For right carpal tunnel syndrome, Dr. Lultschik assessed 0% impairment,
and noted that carpal tunnel syndrome is a condition that is correctable without permanent
impairment. Dr. Lultschik combined Ms. Bell’s impairment from all three compensable
diagnoses and recommended 13% WPI for the compensable injury. On October 23, 2023,
2 The shoulder surgery, consisting of biceps tenodesis, distal clavicle resection,
and subacromial decompression, was performed on October 15, 2021.

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the claim administrator issued an order that granted Ms. Bell a 13% PPD award based on
Dr. Lultschik’s report. Ms. Bell protested this order to the Board.
On April 24, 2024, Bruce Guberman, M.D., performed an IME of Ms. Bell. Dr.
Guberman’s impression was chronic posttraumatic strain of the right shoulder with
impingement syndrome precipitated and aggravated by the work injury; chronic
posttraumatic strain of the cervical spine with aggravation of preexisting but dormant
degenerative joint and disc disease due to the work injury; and right carpal tunnel
syndrome. Using the Guides, Dr. Guberman found that Ms. Bell had 25% impairment for
the cervical spine, all of which he attributed to the compensable injury. Dr. Guberman
noted that although imaging studies revealed evidence of preexisting degenerative joint
disease, Ms. Bell was completely asymptomatic prior to the injury, and there were no
restrictions in her activities of daily living.
For the right shoulder, Dr. Guberman assessed 11% WPI, 2% of which he
apportioned to preexisting degenerative changes, leaving 9% WPI for the compensable
injury. For right carpal tunnel syndrome, Dr. Guberman found 2% WPI. Dr. Guberman
combined 25% WPI for the cervical spine with 9% WPI for the right shoulder and 2% WPI
for carpal tunnel syndrome, for a total of 33% WPI. Because Ms. Bell had already been
awarded 13% PPD, Dr. Guberman recommended an additional 20% PPD award.
In November of 2024, Hicks Manson, M.D., evaluated Ms. Bell at the request of
Pilgrim’s Pride. Using the Guides, Dr. Manson recommended 25% impairment for the
cervical spine. Dr. Manson concluded that although cervical radiculopathy was deemed
compensable, he believed that there was a significant preexisting component based on Ms.
Bell’s MRI scan. Dr. Manson apportioned 50% of Ms. Bell’s cervical radiculopathy to a
preexisting cervical spine pathology and 50% to her compensable work injury and rounded
the 12.5% WPI to 13% WPI for the compensable cervical spine injury. Dr. Manson
indicated that Dr. Guberman was the outlier who concluded that cervical radiculopathy and
carpal tunnel syndrome impairment should be totally attributed to the June 12, 2018, injury.
For right carpal tunnel syndrome, Dr. Manson found that Ms. Bell had 4% WPI. However,
he did not believe right carpal tunnel syndrome was caused by the compensable injury
because Ms. Bell also had left carpal tunnel syndrome. As a result, Dr. Manson apportioned
the entirety of the 4% impairment for the preexisting condition. For right shoulder range
of motion deficits and distal clavicle extension, Dr. Manson found 11% WPI, of which he
apportioned 6% to preexisting acromioclavicular joint arthritis and 5% to the right shoulder
strain. Dr. Manson combined the 13% impairment for the cervical spine with 5%
impairment for right shoulder strain and recommended 17% WPI.
By order dated April 23, 2025, the Board reversed the claim administrator’s order
granting a 13% PPD award and instead granted an additional 20% PPD award for a total
of 33% PPD based on Dr. Guberman’s report. The Board found that Dr. Guberman’s report

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was reliable and persuasive, and that Ms. Bell had 33% whole person impairment for the
compensable injury. It is from this order that Pilgrim’s Pride now appeals.
Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in
part, as follows:
The Intermediate Court of Appeals may affirm the order or decision of the
Workers’ Compensation Board of Review or remand the case for further
proceedings. It shall reverse, vacate, or modify the order or decision of the
Workers’ Compensation Board of Review, if the substantial rights of the
petitioner or petitioners have been prejudiced because the Board of Review’s
findings are:
(1) In violation of statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the Board of Review;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).
On appeal, Pilgrim’s Pride argues that the employer met its burden of proving
apportionment of preexisting impairment is warranted in this case pursuant to Syllabus
Point 6 of Duff, 250 W. Va. at 510, 905 S.E.2d at 530. Further, Pilgrim’s Pride asserts that
Ms. Bell is entitled to a 13% PPD award based on Dr. Lultschik’s report. Finally, Pilgrim’s
Pride avers that Dr. Guberman’s recommendation of 20% PPD award and no
apportionment is not supported by the reliable evidence of record. We disagree.
In Syllabus Point 6 of Duff, 250 W. Va. at 510, 905 S.E.2d at 528, the Supreme
Court of Appeals of West Virginia (“SCAWV”) held that:
Under West Virginia Code § 23-4-9b (2003), the employer has the burden of
proving apportionment is warranted in a workers’ compensation case. This
requires the employer to prove that the claimant “has a definitely
ascertainable impairment resulting from” a preexisting condition(s). This
requires that employer prove that the preexisting condition(s) contributed to
the claimant’s overall impairment after the compensable injury and prove the
degree of impairment attributable to the claimant’s preexisting condition(s).

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Upon review, we conclude that Pilgrim’s Pride has not established that the Board
was clearly wrong in finding that Ms. Bell has a 33% WPI as a result of the compensable
injury. The Board was not clearly wrong when it found that the evidence of record
establishes that Ms. Bell’s compensable cervical condition was asymptomatic prior to the
June 12, 2018, workplace injury, as acknowledged by Drs. Guberman and Lultschik in
their respective reports. Pursuant to the SCAWV’s holding in Duff, it was improper for
Drs. Lultschik and Manson to apportion half of Ms. Bell’s cervical impairment based solely
on diagnostic studies. The Board was not clearly wrong in finding their reports arbitrary
and unreliable for this reason. Further, the Board did not err when it found that Dr.
Guberman’s medical evaluation provides the most reliable opinion regarding Ms. Bell’s
impairment from the compensable injury.
As the SCAWV has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and
capricious’ standards of review are deferential ones which presume an agency’s actions are
valid as long as the decision is supported by substantial evidence or by a rational basis.”
Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). With this deferential
standard of review in mind, we cannot conclude that the Board was clearly wrong in
reversing the claim administrator’s order granting a 13% PPD award and instead granting
an additional 20% PPD award for a total PPD award of 33%.
Accordingly, we affirm the Board’s April 23, 2025, order.
Affirmed.
ISSUED: October 24, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White