Georgian American Alloys, Inc. v. Mark Davis

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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
GEORGIAN AMERICAN ALLOYS, INC.,
Employer Below, Petitioner
v.) No. 25-ICA-49 (JCN: 2022005124)
MARK DAVIS,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Georgian American Alloys, Inc. (“Georgian”) appeals the January 2,
2025, order of the Workers’ Compensation Board of Review (“Board”). Respondent Mark
Davis timely filed a response.1 Georgian did not file a reply. The issue on appeal is whether
the Board erred in reversing the claim administrator’s order, which granted a 10%
permanent partial disability (“PPD”) award, and instead granting an additional 5% PPD
award for a total PPD award of 15%.
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.
Prior to the compensable injury in this case, Mr. Davis was treated for bronchitis,
sinusitis, rib, and thoracic pain on February 19, 1998. Later, on September 17, 2020, Mr.
Davis was examined by Wesley Lieving, D.O., at Pleasant Valley Hospital. Mr. Davis’
visit problems were listed as essential hypertension, moderate persistent asthma without
complication, asthma due to environmental allergies, and chronic right-sided low back pain
without sciatica. Dr. Lieving indicated that Mr. Davis’ pulmonary issues were
inactive/controlled.
1 Georgian is represented by Jeffrey B. Brannon, Esq. Mr. Davis is represented by
Edwin H. Pancake, Esq.
FILED
June 27, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

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Mr. Davis was injured when he fell approximately thirty feet from a furnace, struck
a pipe, and landed on an I-beam while employed as a maintenance worker for Georgian.2
Mr. Davis was treated at Grant Medical Center on August 25, 2021. The claim
administrator issued an order dated September 20, 2021, which held the claim compensable
for broken ribs.
David Soulsby, M.D., performed an independent medical evaluation (“IME”) of Mr.
Davis and issued a report dated January 17, 2023. Dr. Soulsby assessed left rib fractures,
pulmonary contusion, and left intercostal nerve injury. It was noted that Mr. Davis’ rib
fractures developed nonunion, and he underwent fusion surgery at the 10th and 11th ribs.
Dr. Soulsby placed Mr. Davis at maximum medical improvement (“MMI”) and noted that
he continues to have chronic pain that interferes with activities. Using the American
Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993)
(“Guides”) and Rule 20, Dr. Soulsby assessed Mr. Davis’ permanent impairment. Dr.
Soulsby opined that Mr. Davis’ pulmonary function appeared to be normal and rib fractures
were typically rated according to pulmonary function. For the intercostal nerve injury, Dr.
Soulsby placed Mr. Davis in the middle range of Table 16 on page 149 of the Guides and
recommended 10% whole person impairment (“WPI”). Dr. Soulsby stated that there were
no preexisting or coexisting conditions that contributed to this impairment, so
apportionment was not necessary.
On May 15, 2023, the claim administrator issued an order granting Mr. Davis a 10%
PPD award. Mr. Davis protested this order.
Bruce Guberman, M.D., performed an IME of Mr. Davis on September 11, 2023.
Mr. Davis reported that on August 25, 2021, he fell approximately thirty feet from a
structure inside a furnace while replacing parts, and that after the first fifteen feet, he hit
and bounced off a pipe and then fell another fifteen feet, landing on an I-beam. Dr.
Guberman assessed history of left 10th and 11th rib fractures with nonunion, status post
reduction internal fixation of left rib fracture nonunion at the 10th and 11th ribs with
destruction by neurolytic agent of the left intercostal nerves 10 and 11, and status post left
rib 10, rib 11, and rib 12 intercostal nerve block. Dr. Guberman placed Mr. Davis at MMI.
Using Table 16 of the Guides, Dr. Guberman placed Mr. Davis in the category “patient can
breathe spontaneously but has difficulty in activities of daily living that require exertion.”
Dr. Guberman opined that Mr. Davis would be in the upper end of this category due to the
interference in his activities of daily living and recommended 15% WPI. Accordingly, Dr.
Guberman recommended that Mr. Davis receive an additional 5% PPD award in addition
to the 10% PPD award he previously received.
2 We note that the record does not contain an Employees’ and Physicians’ Report of
Occupational Injury form.

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On November 7, 2023, Mr. Davis gave a deposition regarding his claim. Mr. Davis
testified that he did not return to work following the August 25, 2021, injury. Mr. Davis
stated that he was no longer undergoing treatment for the injury, but he continued to have
pain in his back and side daily. He indicated that the pain was worse when taking deep
breaths, bending over, and turning to the side. Mr. Davis testified that he was a well-tender
for seventeen years before he started working for Georgian in 2006. Prior to that, Mr. Davis
testified that he worked as a laborer and in tomato fields.
On April 10, 2024, George Zaldivar, M.D., evaluated Mr. Davis at the request of
Georgian. Dr. Zaldivar issued a report dated April 15, 2024, which stated that
“[u]nfortunately, as in all [cases] of pain, it is something that is felt by the individual and
cannot be measured.” Dr. Zaldivar noted that Dr. Soulsby and Dr. Guberman quoted from
Table 16 of the Guides, which stated that “[p]atient can breathe spontaneously, but has
difficulty in activities of daily living.” Instead of basing an impairment rating on Table 16,
Dr. Zaldivar utilized his pulmonary function study and Table 8 of Chapter 5 of the Guides.
Dr. Zaldivar opined that Mr. Davis would be between class 1 and class 2 based on the
results of the breathing tests and recommended 5% WPI. Dr. Zaldivar then apportioned the
entire 5% WPI to Mr. Davis’ prior smoking habit.
Dr. Soulsby was deposed on May 29, 2024. He testified that he was not provided
with any medical records to review prior to his evaluation. Further, Dr. Soulsby stated that
he rated Mr. Davis’ impairment under Table 16 of the Guides, determined that Mr. Davis
had a 10% WPI, and believed that there were no preexisting or coexisting impairments that
should be apportioned. Dr. Soulsby indicated that after reviewing Dr. Zaldivar’s report, he
changed his opinion. Dr. Soulsby believed that his assessment of 10% WPI for pulmonary
function related to chronic pain from the intercostal nerve was correct. However, he
testified that he would apportion the 5% WPI found by Dr. Zaldivar to the preexisting
conditions and 5% WPI to the compensable injury.
Dr. Guberman issued an addendum report dated August 21, 2024, after reviewing
the reports of Drs. Zaldivar and Soulsby. Dr. Guberman questioned Dr. Zaldivar’s use of
Table 8 of the Guides, and noted that although Dr. Zaldivar recommended 5% WPI, there
was no 5% impairment mentioned in the tables he used. He stated that class 1 equals 0%
WPI, and the next class has an impairment range of 10-25% WPI. Further, Dr. Guberman
noted that Mr. Davis’ smoking history was less than a pack a day, starting when he was
sixteen or seventeen years old, and stopping at age twenty-three. Dr. Guberman also noted
that there is no history of pulmonary systems treatment, shortness of breath, or any other
pulmonary symptoms prior to the compensable injury, Dr. Guberman indicated that Mr.
Davis’ complaints of shortness of breath were directly causally related to the compensable
injury. Further, Dr. Guberman opined that the entire 15% WPI was due to the compensable
injury.

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On September 3, 2024, Mr. Davis gave a second deposition regarding his claim. Mr.
Davis testified that he started smoking cigarettes after high school, and that he smoked less
than a pack per day for about ten years before quitting. When asked to describe his
breathing problems prior to the August 25, 2021, injury, Mr. Davis stated that he did not
have any unless he had the flu, a cold, or bronchitis. Mr. Davis denied having any trouble
performing his work as a maintenance man due to shortness of breath or breathing
problems prior to the injury. Further, he denied any limitation of functioning or pain that
limited his ability to lift or carry objects prior to the injury. Mr. Davis testified that after
the injury he does not engage in physical activity such as walking because it causes him
pain.
By order dated January 2, 2025, the Board reversed the claim administrator’s order
granting a 10% PPD award, and instead granted Mr. Davis an additional 5% PPD award
for a total award of 15% PPD. The Board concluded that Dr. Guberman’s report and finding
of 15% WPI are supported by the objective medical evidence. It is from this order that
Georgian 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, Georgian argues that the Board was clearly wrong in finding that Dr.
Zaldivar’s report was not reliable for the purposes of rating Mr. Davis’ permanent
impairment. Further, Georgian avers that the Board was clearly wrong in relying on Dr.
Guberman’s assessment of impairment. Georgian also asserts that the Board was clearly
wrong in finding that apportionment was not appropriate in the claim. We disagree.

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In Syllabus Point 6 of Duff v. Kanawha County Commission, 250 W. Va. 510, 905
S.E.2d 528 (2024), the Supreme Court of Appeals of West Virginia 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 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).
Here, the Board concluded that Dr. Guberman’s report is supported by the objective
medical evidence, and consistent with the Guides. Dr. Guberman, the Board noted, used
Table 16 of the Guides to rate Mr. Davis’ impairment related to the work injury. The Board
found that Dr. Guberman’s explanation that none of the permanent impairment should be
apportioned because there was no history of any documentation of impairment related to a
preexisting, noncompensable condition of smoking, with no history of prior symptoms
related to limitations of functioning is reasonable and rational and supports the 15% WPI
rating. On the other hand, the Board determined that Dr. Zaldivar’s recommendation of 5%
WPI, based on pulmonary function testing rather than Table 16 of the Guides, was not a
valid and reliable rating because he used an inappropriate method to assess the impairment
related to the compensable injury. Further, the Board determined that even assuming that
a pulmonary function test was an appropriate method to rate the impairment in this claim,
Dr. Zaldivar did not properly assess the amount of impairment in accordance with Table 8
of the Guides.
When considering Dr. Soulsby’s report, the Board found that he, like Dr. Guberman,
used Table 16 of the Guides to rate Mr. Davis’ impairment. However, the Board determined
that Dr. Soulsby’s decision to apportion 5% WPI to Mr. Davis’ preexisting smoking history
was not appropriate based on the fact that he utilized Dr. Zaldivar’s recommendation of
5% WPI for pulmonary function impairment, which is not a valid and reliable rating. Citing
Syllabus Point 6 of Duff, the Board concluded that Georgian did not establish that Mr.
Davis had a definitely ascertainable impairment from his smoking history based on a lack
of documentation of his condition prior to the compensable injury.
Upon review, we conclude that Georgian did not establish that the Board was clearly
wrong in finding that Mr. Davis is entitled to a 15% PPD award. As set forth by the
Supreme Court of Appeals of West Virginia, “[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

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reversing the claim administrator’s order and granting Mr. Davis an additional 5% PPD
award for a total PPD award of 15%.
Based on the foregoing, we affirm the Board’s January 2, 2025, order.
Affirmed.
ISSUED: June 27, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White