Capitol Beverage Company v. Anthony Cosby

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
CAPITOL BEVERAGE COMPANY, May 22, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-37 (JCN: 2019006544)

ANTHONY COSBY,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Capitol Beverage Company (“CBC”) appeals the January 4, 2023, order
of the Workers’ Compensation Board of Review (“Board”). Respondent Anthony Cosby
filed a timely response.1 CBC filed a reply. The issue on appeal is whether the Board erred
in reversing the claim administrator’s order, which granted Mr. Cosby a 2% permanent
partial disability (“PPD”) award and instead granted Mr. Cosby an additional 6% PPD
award for a total 8% PPD award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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.

On September 18, 2018, while employed by CBC as a salesperson, Mr. Cosby fell
while getting out of a car. Mr. Cosby filed a workers’ compensation claim that was
approved for a strain of the left quadricep muscle/fascia/tendon and strain/tear of the left
quadricep muscle/fascia/tendon by claim administrator order dated December 27, 2019.
The surgery to repair Mr. Cosby’s tendon tear was authorized by the claim administrator
in a separate order.

Mr. Cosby was seen by David Soulsby, M.D., on March 17, 2021. Mr. Cosby
reported pain, numbness, and swelling in the left knee. Mr. Cosby denied any prior injuries
to his left knee. Dr. Soulsby found Mr. Cosby to be at maximum medical improvement
(“MMI”). Using the American Medical Association’s Guides to the Evaluation of
Permanent Impairment, (4th ed. 1993) (“Guides”), Dr. Soulsby found the claimant to have

1
CBC is represented by Jeffrey M. Carder, Esq. Mr. Cosby is represented by Patrick
K. Maroney, Esq.

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a total of 4% whole person impairment (“WPI”) in the left knee for reduced range of
motion. He apportioned 2% of Mr. Cosby’s impairment to preexisting left knee
osteoarthritis and allocated the remaining 2% WPI to the compensable injury. The claim
administrator issued an order dated April 7, 2021, granting a 2% PPD award based upon
the report of Dr. Soulsby. Mr. Cosby protested that order.

On March 31, 2022, Mr. Cosby was evaluated by Bruce Guberman, M.D. Dr.
Guberman opined that Mr. Cosby was at MMI. Using the Guides, Dr. Guberman found
that Mr. Cosby had 4% impairment for reduced range of motion, 5% impairment for
atrophy of the left thigh, and 3% impairment for atrophy of the left calf. Dr. Guberman
noted that impairment for range of motion and atrophy cannot be combined under the
Guides. Dr. Guberman found Mr. Cosby to have a total of 8% WPI for atrophy related to
the compensable injury. Dr. Guberman disagreed with Dr. Soulsby's decision to apportion
half of Mr. Cosby’s left knee impairment to preexisting degenerative changes. Dr.
Guberman noted that Dr. Soulsby’s decision to apportion was based solely upon an x-ray
dated September 18, 2018. Dr. Guberman also noted that Mr. Cosby had no injury,
symptoms, functional limitations, or range of motion abnormalities of the left knee prior to
the compensable injury. Additionally, Dr. Guberman noted that Dr. Soulsby had failed to
measure the left lower extremity for atrophy.

On January 4, 2023, the Board reversed the claim administrator’s order and found
that Mr. Cosby had established that he has an 8% WPI based on Dr. Guberman’s report.
CBC 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.

2
Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, __, 882 S.E.2d 916, 921, (Ct. App.
2022).

On appeal, CBC argues that although Mr. Cosby’s osteoarthritis was asymptomatic
prior to his compensable injury, Dr. Soulsby found evidence of osteoarthritis in a physical
evaluation after the compensable injury occurred. Therefore, the Board should have
allowed for apportionment of impairment for osteoarthritis. We disagree.

This Court recognized in Duff:

The Supreme Court of Appeals of West Virginia has previously
recognized that radiographic evidence of degenerative changes alone is not
sufficient to allow apportionment for preexisting injury. There must be
something more, some evidence of a detrimental effect on work or the
activities of daily living. Where such evidence of impairment is lacking, the
Court has found that apportionment was not appropriate. See Galaxy
Distributing of WV, Inc. v. Spangler, No. 19-0803, 2020 WL 6559079 (W.
Va. Nov. 6, 2020) (memorandum decision) (unanimous decision) (the Board
did not err in finding that apportionment was arbitrary and speculative where
preexisting changes to right shoulder did not appear to affect the claimant’s
work or daily activities); Minor v. West Virginia Division of Motor Vehicles,
No. 17-0077, 2017 WL 6503113, at *2 (W. Va. Dec. 19, 2017)
(memorandum decision) (3-2 decision reversing Board of Review decision
apportioning for preexisting condition) (“While the 2004 x-ray may have
shown degenerative changes [to the right knee], those changes did not appear
to affect Mr. Minor's ability to work or his activities of daily living.
Therefore, we agree with the Office of Judges’ findings that . . . .
apportionment of the impairment rating due to the 2004 x-ray was improper.
. . .”).

Duff at __, 882 S.E.2d at 924.

Here, the Board found that Dr. Soulsby’s report was not reliable because he
apportioned half of the impairment to Mr. Cosby’s preexisting condition based on
radiographic evidence alone. The Board further found that Dr. Guberman’s report was
reliable because he correctly attributed the entirety of Mr. Cosby’s left lower extremity
impairment to the compensable injury and did not apportion for any preexisting conditions.
See Martin v. Randolph Cnty Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408
(1995) (“We cannot overlook the role that credibility places in factual determinations, a
matter reserved exclusively for the trier of fact. We must defer to the ALJ’s credibility
determinations and inferences from the evidence . . . .”).

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Upon review, we conclude that the Board was not clearly wrong in finding that Dr.
Guberman’s report was the most reliable as there was no evidence that Mr. Cosby’s
osteoarthritis caused any detrimental effect on his ability to work or activities of daily
living; and apportionment was inappropriate. Further, the Board was not clearly wrong in
granting Mr. Cosby an 8% PPD award based on Dr. Guberman’s report.

Finding no error in the Board’s October 11, 2022, order, we affirm.

Affirmed.

ISSUED: May 22, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

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