Misa Amane v. Pas Parent, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

MISA AMANE, FILED
Claimant Below, Petitioner April 10, 2023
EDYTHE NASH GAISER, CLERK
vs.) No. 22-ICA-304 (JCN: 2021012068) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

PAS PARENT, INC.,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Misa Amane appeals the November 15, 2022, order of the Workers’
Compensation Board of Review (“Board”), which affirmed the claim administrator’s
denial of a permanent partial disability (“PPD”) award. Ms. Amane’s employer,
Respondent Pas Parent, Inc., (“Pas”), filed a timely response.1 Ms. Amane did not file a
reply. The issue on appeal is whether the Board erred in affirming the claim administrator’s
order denying Ms. Amane a PPD award for contact dermatitis and eczema.

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.

Ms. Amane was employed by Pas as a lab technician. In the course of her
employment, she sustained a chemical burn injury to her left hand on December 10, 2020.
Ms. Amane was acid washing with hydrochloric acid at the time of her injury. Ms. Amane
was seen at Beckley Area Regional Hospital ER the same day and complained of
hydrochloric acid burns to her left middle and left index finger. Ms. Amane reported
experiencing burning and pain at the onset, which had resolved by the time she was seen
at the ER. She was diagnosed with a chemical burn to fingers on her left hand. The medical
provider indicated that Ms. Amane could return to work on December 30, 2020.

On December 23, 2020, Ms. Amane had a telehealth visit with Access Health. She
complained of limited motion in her middle and index fingers secondary to the chemical
burn healing process and possible scar formation.

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Ms. Amane is represented by Reginald D. Henry, Esq. and Lori J. Withrow, Esq.
Pas is represented by Jeffrey M. Carder, Esq.

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Ms. Amane was evaluated by Syed A. Zahir, M.D., an orthopedic surgeon
specializing in hands, on December 29, 2020. Dr. Zahir found that the blisters had ruptured,
and he noted thickening of the skin on the left index and middle finger.

On January 13, 2021, Ms. Amane was seen at Cabell Huntington’s ER. She stated
she had some reduced range of motion in the left hand, her scar tissue was cracking, she
had decreased grip strength, and she had difficulty performing her job duties.

Ms. Amane was seen by Dr. Zahir on January 29, 2021. She complained to Dr. Zahir
of difficulties performing her job and difficulty holding onto objects. Dr. Zahir’s notes
indicate that the wound was epithelizing with some skin damage on her left index finger.
He opined that Ms. Amane should be kept from doing intricate work with her left hand and
especially be kept away from chemicals at the present time. Dr. Zahir recommended a
consultation with a skin specialist.

Ms. Amane visited the Dermatology Centers in February 2021. The examination
revealed dermatitis on the left index finger, left middle finger, left ring finger, left thumb,
and right thumb. Her arms were also dry and scaling consistent with atopic dermatitis. Ms.
Amane was noted to have a history of atopic dermatitis to the hands and arms. The
diagnosis was eczema and atopic dermatitis. She was seen again on April 14, 2021, and
diagnosed with dermatitis on the right middle finger, right thumb, right ring finger, left
thumb, left index finger, left thumb, and left middle finger.

On May 13, 2021, the claim administrator held the claim compensable for chemical
burn to the left middle and index fingers.

Ms. Amane was again seen by Dr. Zahir on May 20, 2021. He found that she had a
considerable amount of skin changes present in the left index and middle fingers. Dr. Zahir
recommended further evaluation by a dermatologist. On July 29, 2021, Dr. Zahir
completed a Diagnosis Update form with a primary diagnosis of chemical burn unspecified
degree of multiple left fingers and a secondary diagnosis of contact dermatitis.

On August 30, 2021, Ms. Amane was evaluated by Jennifer Lultschik, M.D., who
specializes in occupational medicine. Dr. Lultschik opined that after Ms. Amane’s burns
healed in early 2021, she began experiencing skin fissuring with regular use and hand
washing. Dr. Lultschik found no clinical studies or other medical evidence that indicated
localized chemical burns would cause general aggravation of atopic dermatitis. Dr.
Lultschik opined that Ms. Amane had reached maximum medical improvement for her
compensable injury. Dr. Lultschik found no evidence of scarring or contracture resulting
from Ms. Amane’s compensable injury. Dr. Lultschik used the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, (4th ed. 1993)
(“Guides”) and determined that Ms. Amane had no ratable impairment for her compensable
injury.

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Ms. Amane was seen by Erica Ghareeb, M.D., a dermatologist, on September 20,
2021. Ms. Amane complained of continuing episodes of painful dryness, scaling, and
fissuring of her hands and fingertips. Dr. Ghareeb diagnosed her with contact dermatitis
with a component of dyshidrotic eczema.

The claim administrator issued an order dated October 13, 2021, which granted Ms.
Amane no PPD award based on the report of Dr. Lultschik.

On January 10, 2022, Ms. Amane was deposed. She testified that she had been
diagnosed with eczema on her arms as a child, but she had not been treating it because it
was not bad enough to bother her. She testified that she had never been diagnosed with, or
treated for, contact dermatitis on her left index or middle fingers. She further testified that
during the accident, she also got acid on her right hand as she was attempting to rinse it off
her left hand, but the skin was burned only on the left hand. Ms. Amane testified that, since
then, she has experienced symptoms on both hands, including the reopening of wounds on
her right index finger, although the symptoms are more severe on the left hand.

Ms. Amane was evaluated on March 28, 2022, by Bruce Guberman, M.D., who
specializes in occupational medicine. Dr. Guberman opined that Ms. Amane developed
dermatitis as a result of her compensable chemical burns to the left index and middle
fingers. Using the Guides, Dr. Guberman opined that Ms. Amane had a 3% whole person
impairment (“WPI”) for range of motion abnormalities and a 5% WPI for dermatitis of the
left index and middle fingers. Dr. Guberman combined the impairments to a total WPI of
8%. Dr. Guberman did clarify that if dermatitis was not found to be compensable, then Ms.
Amane has a total WPI of 3% for loss of range of motion.

On July 22, 2022, Ms. Amane was evaluated by Joseph Grady, M.D. Dr. Grady
diagnosed Ms. Amane with healed partial thickness burns to her left index and middle
fingers. Dr. Grady used the Guides and found that Ms. Amane had no ratable impairment
related to her compensable injury. Specifically, Dr. Grady found no evidence of sensory or
range of motion impairment. Dr. Grady opined that Ms. Amane had a 5% impairment for
atopic dermatitis of the bilateral upper extremities, but Dr. Grady did not associate Ms.
Amane’s dermatitis with the compensable injury.

The Board issued an order dated November 15, 2022, affirming the claim
administrator’s October 13, 2021, order, which had granted Ms. Amane no PPD award.
Ms. Amane appeals that order.

Meanwhile, this Court held in Amane v. Pas Parent, Inc., No. 22-ICA-102, 2023
WL 152497 (W. Va. Ct. App. Jan. 10, 2023) (memorandum decision), that the Office of
Judges, as affirmed by the Board, did not err in finding that Ms. Amane failed to establish
that her ongoing issues with dermatitis were related to her compensable injury.

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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, __ W. Va. __, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, Ms. Amane argues that the preponderance of the evidence establishes
that her dermatitis was caused by the compensable injury. Ms. Amane further argues that
the Board did not consider the record as a whole when it determined that she did not have
range of motion abnormalities.

The Board found that Dr. Guberman’s report was not persuasive as he rated a
noncompensable injury, found that Ms. Amane dermatitis was related to her compensable
injury, and found that Ms. Amane had range of motion impairment. The Board found that
the reports of Drs. Lultschik and Grady were the most persuasive. Both Drs. Grady and
Lultschik found that Ms. Amane had no range of motion impairment and that her atopic
dermatitis was not related to her compensable injury.

After review, we conclude that the Board was not clearly wrong in finding that Ms.
Amane failed to establish that she has any permanent impairment as a result of her
compensable injury.

Finding no error in the Board’s November 15, 2022, order, we affirm.

Affirmed.

ISSUED: April 10, 2023

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CONCURRED IN BY:

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

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