Plateau Medical Center v. Peggy Garrett

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
PLATEAU MEDICAL CENTER, June 15, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-17 (JCN: 2020009389)

PEGGY GARRETT,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Plateau Medical Center (“PMC”) appeals the December 16, 2022, order
of the Workers’ Compensation Board of Review (“Board”). Respondent Peggy Garrett
filed a timely response.1 PMC did not file a reply. The issue on appeal is whether the Board
erred in affirming the Workers’ Compensation Office of Judges’ (“OOJ”) order, which
reversed the claim administrator’s order granting Ms. Garrett a 6% permanent partial
disability (“PPD”) award and granted her an additional 7% PPD award for a total of a 13%
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.

Ms. Garrett suffered a workplace injury on October 7, 2019, while employed by
PMC, when she slipped off of a stoop and fell. That same day Ms. Garrett underwent an x-
ray of her right wrist at PMC. The x-ray revealed a comminuted impacted distal radial
fracture.

On October 15, 2019, Ms. Garrett underwent an open reduction with internal
fixation of a right three-part intra-articular distal radius fracture, performed by John Tabit,
D.O. On November 11, 2019, the claim administrator issued an order holding the claim
compensable for a right-hand sprain. Ms. Garrett submitted a Diagnosis Update form dated
January 21, 2020, requesting to include intra-articular fracture of the lower end of the right
radius as a compensable component of the claim. On June 17, 2020, the claim administrator

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Ms. Garrett is represented by Reginald D. Henry, Esq., and Lori J. Withrow, Esq.
PMC is represented by Mark J. Grigoraci, Esq.

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issued an order adding intra-articular fracture of the lower end of the right radius as a
compensable diagnosis. Ms. Garrett underwent an EMG on June 19, 2020, which revealed
moderate right and severe left carpal tunnel syndrome (“CTS”).

Ms. Garrett was seen by Paul Bachwitt, M.D., on September 28, 2020, for an
independent medical examination (“IME”). Using the American Medical Association’s
Guides to the Evaluation of Permanent Impairment, (4th ed. 1993) (“Guides”), Dr. Bachwitt
found 10% upper extremity impairment related to loss of range of motion in the right wrist.
He found no impairment of the right elbow. Dr. Bachwitt converted 10% upper extremity
impairment to 6% whole person impairment (“WPI”). Dr. Bachwitt noted that Ms. Garrett
had preexisting CTS, but he found no reason to apportion for it.

On February 22, 2021, Ms. Garrett was seen by Bruce Guberman, M.D., for an IME.
Dr. Guberman diagnosed Ms. Garrett with a comminuted, impacted distal radial fracture
with intra-articular extension and a non-displaced ulnar styloid fracture. He found Ms.
Garrett to be at maximum medical improvement (“MMI”). Using the Guides, Dr.
Guberman found 22% upper extremity impairment for the right wrist, which he converted
to 13% WPI. Dr. Guberman said that Ms. Garrett reported that her symptoms had worsened
since her IME with Dr. Bachwitt, which accounted for the increased impairment rating.

Ms. Garrett was examined by Michael Kominsky, D.C., on May 3, 2021. Dr.
Kominsky opined that Ms. Garrett was at MMI. Dr. Kominsky recommended that Ms.
Garrett have future physical medicine treatments for her ongoing symptomatology. Using
the Guides, Dr. Kominsky found a total of 19% upper extremity impairment in the right
wrist, which he converted to 11% WPI.

On November 23, 2021, Ms. Garrett was seen by Syam Stoll, M.D., for an IME. Dr.
Stoll opined that Ms. Garrett had reached MMI. Dr. Stoll found that any ongoing subjective
complaints were due to the noncompensable medical diagnosis of bilateral CTS, rather than
the compensable diagnoses in the claim. Using the Guides, Dr. Stoll found 12% upper
extremity impairment for the right wrist which he converted to 7% WPI.

Ms. Garrett was examined by Marsha Bailey, M.D., on December 16, 2021. Dr.
Bailey opined that Ms. Garrett had reached MMI. Using the Guides, Dr. Bailey found 6%
upper extremity impairment for the right wrist, which she converted to 4% WPI. Dr. Bailey
apportioned 2% of the WPI for Ms. Garrett’s preexisting conditions and allocated the
remaining 2% WPI to this claim.

On May 11, 2022, the OOJ issued an order reversing the claim administrator’s order
granting Ms. Garrett a 6% PPD award and granted her an additional 7% PPD, for a total of
a 13% PPD award. The Board found that Dr. Guberman’s report was the most persuasive
and adopted his findings. PMC now appeals the Board’s order.

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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, 247 W. Va. 550, __, 882 S.E.2d 916, 921 (Ct. App. 2022).

On appeal, PMC argues that the Board failed to properly consider medical evidence
and ignored evidence establishing that Dr. Guberman’s rating was inflated. PMC further
argues that the evidence establishes that Ms. Garrett’s remaining symptoms were caused
by noncompensable CTS. We disagree.

The OOJ found that Dr. Bailey is the only physician that apportioned any of the
impairment to preexisting CTS, thus, her report was found to be an outlier and
unpersuasive. The OOJ found the reports of all other physicians to be of equal weight. The
OOJ noted that Drs. Stoll, Guberman, and Bachwitt correctly used the Guides and
performed their evaluations, and they simply had a difference of medical opinion regarding
the level of Ms. Garrett’s impairment. Therefore, the OOJ adopted the findings of Dr.
Guberman as they were the most consistent with Ms. Garrett’s position.

West Virginia Code § 23-4-1g(a) (2003) provides the following:

For all awards made on or after the effective date of the amendment
and reenactment of this section during the year two thousand three, resolution
of any issue raised in administering this chapter shall be based on a weighing
of all evidence pertaining to the issue and a finding that a preponderance of
the evidence supports the chosen manner of resolution. The process of
weighing evidence shall include, but not be limited to, an assessment of the
relevance, credibility, materiality and reliability that the evidence possesses
in the context of the issue presented. Under no circumstances will an issue

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be resolved by allowing certain evidence to be dispositive simply because it
is reliable and is most favorable to a party's interests or position. If, after
weighing all of the evidence regarding an issue in which a claimant has an
interest, there is a finding that an equal amount of evidentiary weight exists
favoring conflicting matters for resolution, the resolution that is most
consistent with the claimant's position will be adopted.

After review, we conclude that the OOJ, as affirmed by the Board, was not clearly
wrong in finding that Drs. Stoll, Guberman, and Bachwitt all correctly used the Guides to
make determinations regarding Ms. Garrett’s impairment. Further, the OOJ was not clearly
wrong in adopting the findings of Dr. Guberman as they were the most consistent with Ms.
Garrett’s position.

Accordingly, we affirm the Board’s December 16, 2022, order.

Affirmed.

ISSUED: June 15, 2023

CONCURRED IN BY:

Judge Thomas E. Scarr
Judge Charles O. Lorensen

DISSENTING:

Chief Judge Daniel W. Greear

Greear, C.J., dissenting:

The majority decision affirms the ruling of the West Virginia Workers’
Compensation Board of Review (“Board”), that found the reports of Paul Bachwitt, M.D.,
Bruce Guberman, M.D., and Syam Stoll, M.D., are all of equal weight based off the reports
appearing to be compliant with the AMA Guides to the Evaluation of Permanent
Impairment (“AMA guides”). However, there is a clear deviation in Dr. Guberman’s report
when compared to Drs. Stoll and Bachwitt. Wherefore, I respectfully dissent.

West Virginia Code § 23-4-1(g) provides, in part, “[...] [t]he process of weighing
evidence shall include, but not be limited to, an assessment of the relevance, credibility,
materiality and reliability that the evidence possesses in the context of the issue presented.”
Further, “[i]f, after weighing all of the evidence regarding an issue, there is a finding that

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an equal amount of evidentiary weight exists for each side, the resolution that is most
consistent with the claimant’s position will be adopted.” W. Va. Code § 23-4-1(g).

The Board must base their decision upon the preponderance of the evidence. As the
Board recognizes, the preponderance of the evidence means such evidence, when
considered and compared with opposing evidence, is more persuasive or convincing.

In this matter, Ms. Garrett was evaluated by four doctors and a chiropractor. The
report of Marsha Bailey, M.D., was not found persuasive for failing to mention radial or
ulnar deviation, and for being the only evaluator to apply apportionment. Michael
Kominsky, D.C., was not found persuasive due to recommending further physical medicine
treatments, despite Ms. Garrett being at MMI. Drs. Bachwitt, Guberman, and Stoll’s
reports were all found reliable and of equal evidentiary value.

Dr. Bachwitt examined Ms. Garrett on September 28, 2020. Based on Dr.
Bachwitt’s examination, he found flexion of 35 degrees, extension of 30 degrees, radial
deviation of 20 degrees, ulnar deviation of 20 degrees, and a whole person impairment
(“WPI”) of 6%. Dr. Guberman examined Ms. Garrett on February 22, 2021. Based on Dr.
Guberman’s examination, he found flexion of 15 degrees, extension of 15 degrees, radial
deviation of 5 degrees, ulnar deviation of 5 degrees, and a WPI of 13%. The last
examination was conducted by Dr. Stoll on November 23, 2021. Based on Dr. Stoll’s
examination, he found flexion of 40 degrees, extension of 25 degrees, radial deviation of
30 degrees, ulnar deviation of 15 degrees, and a WPI of 7%.

The Board found the opinions of Dr. Bailey and Chiropractor Kominsky to be not
persuasive due to being outliers. However, the Board found Dr. Guberman’s report to hold
the same evidentiary weight as Drs. Bachwitt and Stoll’s reports despite being a clear
outlier based on the range of motion test and the WPI rating.

In this case and in others that have come before this court, the Board was too quick
to throw up its hands and say that two differing medical opinions were reliable and
therefore held equal evidentiary weight. The Board seems to believe that if two things are
reliable then they must be equal. Here, Dr. Guberman’s report may be reliable as he used
the AMA guides to come to his decision. However, just because Dr. Guberman’s report is
reliable, does not mean that his report must hold the same evidentiary weight as the other
medical reports that were also found reliable. Consistent with West Virginia Code § 23-4-
1(g), reliability, along with relevance, credibility, and materiality, are simply factors used
to assess what weight the evidence should be given.

I believe the record is clear that Dr. Guberman’s report is an outlier based on the
substantial difference in the range of motion tests and WPI rating when compared to the
reports of Drs. Bachwitt and Stoll. Thus, Dr. Guberman’s report cannot hold the same
evidentiary weight as the reports of Drs. Bachwitt and Stoll. The Board should consider

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factors such as these and not be too quick to jump to the determination that all reliable
reports are of equal evidentiary weight.

Wherefore, for the foregoing reasons, I respectfully dissent.

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