Andra L. Gajdos v. Appalachian Electronic Instruments, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ANDRA L. GAJDOS, November 1, 2023
Claimant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-232 (JCN: 2017029442) OF WEST VIRGINIA

APPALACHIAN ELECTRONIC INSTRUMENTS, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Andra L. Gajdos appeals the May 8, 2023, order of the Workers’
Compensation Board of Review (“Board”). 1 Respondent Appalachian Electronic
Instruments, Inc. (“AEI”) filed a timely response. 2 Ms. Gajdos did not file a reply. The
issue on appeal is whether the Board erred in affirming the claim administrator’s order,
which granted Ms. Gajdos no additional permanent partial disability (“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 June 9, 2017, while employed by AEI, Ms. Gajdos sustained a right femur
fracture, when she tripped and fell. On the date of injury, a CT scan of Ms. Gajdos’ pelvis
was performed, revealing degenerative changes in the sacroiliac joint and a right
intertrochanteric fracture. 3 On June 10, 2017, Ms. Gajdos underwent an open reduction and
internal fixation of the right hip with an intramedullary nail.

1
The Board listed Ms. Gajdos’ first name as “Andrea” in its May 8, 2023, order,
however, Ms. Gajdos’ has indicated that the correct spelling of her first name is “Andra.”
We will use the name “Andra” to identify Ms. Gajdos.
2
Ms. Gajdos is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
AEI is represented by James W. Heslep, Esq.

On March 26, 2018, the claim administrator issued an order holding the claim
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compensable for a fracture of the right femur.
1
Ms. Gajdos was evaluated by Bruce Guberman, M.D., on March 20, 2018. After
performing a physical examination of Ms. Gajdos and reviewing her medical records, Dr.
Guberman found her to be at maximum medical improvement (“MMI”). Using the
American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed.
1993) (“Guides”), Dr. Guberman opined that Ms. Gajdos had 4% whole person impairment
(“WPI”) for reduced flexion and extension of the right hip and 2% WPI for two centimeters
of shortening on the right leg compared to the left leg. Dr. Guberman combined these
impairment ratings and found that Ms. Gajdos had a total of 6% WPI related to her
compensable injury.

On March 26, 2018, Ms. Gajdos was deposed. She testified that her symptoms
persisted, despite undergoing surgery and physical therapy. On April 3, 2018, the claim
administrator issued an order granting Ms. Gajdos a 6% PPD award, based on Dr.
Guberman’s report. 4

Ms. Gajdos was evaluated by Michael Kominsky, D.C., on November 16, 2021. Dr.
Kominsky found her to be at MMI for her compensable injury. Using the Guides, Dr.
Kominsky found that Ms. Gajdos had 20% lower extremity impairment for loss of motion
in the right hip and 9% lower extremity impairment for a two-centimeter leg length
discrepancy, which were converted to 11% WPI. Dr. Kominsky also found that Ms. Gajdos
had 2% WPI for post-surgical scarring. Dr. Kominsky opined that Ms. Gajdos had a
combined total of 13% WPI related to the compensable injury.

On February 28, 2022, Ms. Gajdos was evaluated by Joseph Grady, M.D., who
found no additional impairment. 5 The claim administrator issued an order dated March 21,
2022, which granted Ms. Gajdos no additional PPD award based on Dr. Grady’s report.
Ms. Gajdos protested this order.

Ms. Gajdos was evaluated by David Soulsby, M.D., on November 8, 2022. Dr.
Soulsby opined that Ms. Gajdos was at MMI for her compensable injury. Using the Guides,
Dr. Soulsby found that Ms. Gajdos had no ratable impairment for loss of range of motion
in her hip and no ratable impairment for leg length discrepancy. Dr. Soulsby opined that
Ms. Gajdos had been fully compensated by her prior 6% PPD award.

On May 8, 2023, the Board issued an order affirming the claim administrator’s
order, which granted Ms. Gajdos no additional PPD award. The Board found that Ms.

4
Ms. Gajdos protested this order. The claim administrator’s April 3, 2018, order
was affirmed by the Office of Judges in a decision dated February 27, 2020.
5
This report was not submitted to the Board.

2
Gajdos had not established that she suffered greater than 6% WPI as a result of her
compensable injury. Ms. Gajdos 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.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App.
2022).

On appeal, Ms. Gajdos argues that the evidence clearly establishes that she
continues to suffer symptoms despite undergoing treatment. Ms. Gajdos further argues that
the Board was clearly wrong to disregard Dr. Kominsky’s report when it was supported by
extensive medical evidence. We disagree.

Here, the Board found that Ms. Gajdos failed to establish with medical evidence
that she was entitled to additional PPD. The Board further found that Dr. Kominsky’s
report was not persuasive as it was not consistent with the weight of the medical evidence.
The Board specifically noted that Dr. Kominsky was the only evaluator to find impairment
for range of motion loss in internal rotation and external rotation of the right hip and he
was the only evaluator to find impairment for scarring.

Upon review, we conclude that the Board was not clearly wrong in finding that Ms.
Gajdos failed to establish that she suffered greater than 6% impairment related to her
compensable injury based on its review of the available medical reports. Further, the Board
was not clearly wrong in determining that Dr. Kominsky’s report was not persuasive due
to the fact that it was not consistent with the medical evidence.

3
Our review is deferential to the Board. West Virginia Code § 23-5-12a(b) sets forth
the same standard of review as was previously required of the Board when it reviewed
decisions by the Office of Judges per West Virginia Code § 23-5-12 before the 2021
statutory amendments became effective. In considering West Virginia Code § 23-5-12, the
Supreme Court of Appeals of West Virginia stated that the Board was required to accord
deference to the decisions by the Office of Judges. See Conley v. Workers’ Comp. Div.,
199 W. Va. 196, 203, 483 S.E.2d 542, 549 (1997). Further, we defer to the Board’s
determinations of credibility. 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 . . . .”).

Accordingly, we affirm the Board’s May 8, 2023, order.

Affirmed.

ISSUED: November 1, 2023

CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating.

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