West Virginia Early Learning Academy at the Capitol, LLC v. Susan Rabel

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

WEST VIRGINIA EARLY LEARNING ACADEMY at the CAPITOL, LLC,
Employer Below, Petitioner
FILED
v.) No. 24-ICA-472 (JCN: 2022000121)
June 6, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
SUSAN RABEL, INTERMEDIATE COURT OF APPEALS
Claimant Below, Respondent OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner West Virginia Early Learning Academy at the Capitol, LLC
(“WVELAC”) appeals the October 30, 2024, order of the Workers’ Compensation Board
of Review (“Board”). Respondent Susan Rabel filed a response.1 WVELAC did not reply.
The issue on appeal is whether the Board erred in reversing the claim administrator’s order,
which granted Ms. Dunlap a 6% permanent partial disability (“PPD”) award, and instead
granted her an additional 8% award for a total PPD award of 14%.

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.

While employed by WVELAC as a teacher’s aide, Ms. Rabel completed an
Employees’ and Physicians’ Report of Occupational Injury or Disease dated May 18, 2021,
asserting that she sustained an injury to her right wrist, arm, shoulder and back on May 17,
2021, when her foot got caught on a gate and she tripped. The physician’s portion, also
dated May 18, 2021, indicated an occupational right shoulder injury/sprain. On July 14,
2021, the claim administrator issued an order holding the claim compensable for an
unspecified sprain of right shoulder. The order denied compensability for pre-existing
degenerative changes in the right shoulder. Surgery to repair various injuries to the
claimant’s shoulder was performed on October 25, 2021. On February 18, 2022, the claim
administrator issued an order adding right wrist sprain as a compensable condition in the
claim; surgery to repair her wrist injury was performed on July 21, 2022.

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WVELAC is represented by Jeffrey B. Brannon, Esq. Ms. Rabel is represented by
William B. Gerwig, III, Esq.

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On February 7, 2023, Prasadarao Mukkamala, M.D., performed an independent
medical evaluation (“IME”) of Ms. Rabel. Dr. Mukkamala found that Ms. Rabel had
reached maximum medical improvement (“MMI”) for her shoulder and wrist injuries. Dr.
Mukkamala noted that the accepted diagnoses are a right wrist sprain and a right shoulder
sprain, and that Ms. Rabel underwent surgery for her right shoulder on October 25, 2021,
and for her right wrist on July 21, 2022. Using the American Medical Association’s Guides
to the Evaluation of Permanent Impairment, (4th ed. 1993) (“Guides”) Dr. Mukkamala
opined that Ms. Rabel had 5% whole person impairment (“WPI”) for the right shoulder
and 1% WPI for the right wrist for a total of 6% WPI. The claim administrator issued an
order dated February 14, 2023, which granted a 6% PPD award based on the February 7,
2023, report of Dr. Mukkamala. Ms. Rabel protested this order.

Bruce Guberman, M.D., performed an IME of Ms. Rabel on April 27, 2023. Dr.
Guberman opined that Ms. Rabel had reached MMI. Using the Guides, Dr. Guberman
found that Ms. Rabel has 4% upper extremity impairment (“UEI”) for range of motion
abnormalities of her right wrist, 14% UEI for range of motion abnormalities of the right
shoulder, and 10% UEI for the resection arthroplasty of the distal clavicle. Dr. Guberman
noted that the 10% for the resection arthroplasty, which is based on Table 27 of the Guides,
is directly related to the surgery, which would not have been necessary if it were not for
the compensable injury. Using the Guides’ Combined Values Chart, these ratings were
combined and converted to 15% WPI. Dr. Guberman found 1% impairment of Ms. Rabel’s
uninjured left shoulder, which he related to preexisting degenerative changes, thus, he
apportioned that 1% from the injured right shoulder. Dr. Guberman found that Ms. Rabel
has 14% WPI attributable to the compensable injury.

On January 30, 2024, David Soulsby, M.D., performed an IME of Ms. Rabel and
found that she had reached MMI for her compensable injury. Using the Guides, Dr. Soulsby
found that Ms. Rabel had 17% UEI, which converts to 10% WPI. Dr. Soulsby measured
the range of motion of the uninjured left shoulder and found 2% WPI, which he subtracted
from the right shoulder finding and assessed 8% WPI for the compensable injury. Dr.
Soulsby reviewed Dr. Guberman’s report and agreed with his finding that Ms. Rabel has
17% UEI for range of motion abnormalities. However, he disagreed with Dr. Guberman’s
finding of an additional 10% UEI from Table 27 of the Guides for resection of the distal
clavicle. Dr. Soulsby stated that Ms. Rabel’s resection had healed nicely, she had no pain
or tenderness at the clavicle joint, and the Crossarm test was negative. Dr. Soulsby opined
that the Range of Motion Model adequately covered Ms. Rabel’s impairment.

On October 30, 2024, the Board reversed the claim administrator’s order granting
Ms. Rabel a 6% PPD award and granted Ms. Rabel an additional 8% PPD award, for a total
of a 14% PPD award. The Board found that Dr. Guberman’s report was the most
persuasive, that Dr. Guberman explained the right shoulder surgery was directly related to

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the compensable injury, and that Ms. Rabel established that she has 14 % impairment
related to the compensable injury. WVELAC now appeals the Board’s order.

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).

WVELAC argues that Ms. Rabel is not entitled to an impairment rating for her
“noncompensable” surgery. We disagree.

Here, the Board determined that Ms. Rabel established that she has 14% impairment
related to the compensable injury. The Board noted that both Dr. Guberman and Dr.
Soulsby appropriately considered Ms. Rabel’s uninjured left shoulder in order to apportion
impairment for degenerative changes in the left shoulder. The Board further noted that Dr.
Mukkamala did not apportion, and he failed to address his decision not to apportion. The
Board also noted that Dr. Soulsby chose not to include the resection arthroplasty in his
impairment rating. Finally, the Board noted that Dr. Guberman opined that Ms. Rabel’s
resection arthroplasty would not have been performed but for the compensable injury. The
Board found that Dr. Guberman’s report was the most persuasive.

We find no merit in WVELAC’s argument that the surgical procedure to resect Ms.
Rabel’s distal clavicle was not specifically authorized in the claim as no party has
submitted evidence into the record below indicating that authorization for the surgery was
denied by the claim administrator. None of the physician reports indicate that authorization
for the surgery was denied, nor that Ms. Rabel sought the surgery outside of the claim.

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Further, Dr. Guberman explained the surgery was directly connected to the shoulder injury
and would “not have been performed if it were not for this injury.”

Upon review, we conclude that the Board was not clearly wrong in finding that Ms.
Rabel established that she has 14% impairment related to the compensable injury. Further,
we conclude that the Board was not clearly wrong in finding that Dr. Guberman’s report
was the most persuasive considering that he appropriately apportioned for preexisting
degenerative conditions, and he was the only physician to rate all components of the
compensable injury. As the Supreme Court of Appeals of West Virginia 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 Ms.
Rabel a 6% PPD award and instead granting her an additional 8% award for a total PPD
award of 14%.

Accordingly, we affirm the Board’s October 30, 2024, order.

Affirmed.

ISSUED: June 6, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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