Eagle Manufacturing v. Terri Becca

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
EAGLE MANUFACTURING,
Employer Below, Petitioner February 2, 2023
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 22-ICA-97 (BOR Appeal No. 2058193) OF WEST VIRGINIA

(JCN: 2014027013)

TERRI BECCA,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Eagle Manufacturing (“Eagle”) appeals the August 19, 2022, order of the
West Virginia Workers’ Compensation Board of Review (“Board”). Respondent Terri
Becca (“Ms. Becca”) filed a timely response. 1 Eagle did not file a reply. The issue on appeal
is whether the Board erred in affirming the decision of the Office of Judges (“OOJ”), which
awarded Ms. Becca an additional award of 4% permanent partial disability (“PPD”),
increasing her prior total PPD award from 47% to 51%.

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. As
explained below, we find no error in the Board’s determination that the OOJ properly
concluded that Ms. Becca was entitled to an additional award of 4% PPD. Accordingly, a
memorandum decision affirming the Board’s order is appropriate under Rule 21(c) of the
Rules of Appellate Procedure.

On March 4, 2014, Ms. Becca sustained compensable workplaces injuries to her left
wrist and left upper extremity while working at Eagle’s manufacturing plant. By claim
administrator’s decision dated April 20, 2017, Ms. Becca was awarded 47% PPD. This
award was based upon the independent medical examination (“IME”) of Dr. Abraham who
found that under the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993) (“Guides”), Ms. Becca had a whole person
impairment (“WPI”) of 47%. 2

Eagle is represented by Melissa M. Stickler, Esq. Ms. Becca is represented by
1

James D. McQueen, Jr., Esq.
2
Based upon the appellate record, the only mention of Dr. Abraham is in the claim
administrator’s April 20, 2017, decision and his or her full name is not given.

1
On October 11, 2018, a subsequent IME was performed by Dr. Bruce A. Guberman,
M.D. Dr. Guberman concluded Ms. Becca had a poor prognosis; had reached maximum
medical improvement (“MMI”); and pursuant to the Guides, her WPI was now 51%. Based
on Dr. Guberman’s evaluation, Ms. Becca filed a petition to reopen her claim for an
additional PPD award in January 2020. Thereafter, Dr. Joseph E. Grady II, M.D.,
conducted another IME of Ms. Becca on January 15, 2021. Dr. Grady’s report concluded
that Ms. Becca’s prognosis was poor; a causal relationship existed between her injury and
her March 4, 2014, workplace incident; and that she had reached MMI for her compensable
conditions. Pursuant to the Guides, Dr. Grady concluded that Ms. Becca had a WPI of 47%.

By letter dated January 29, 2021, the claim administrator denied Ms. Becca’s
request for additional PPD. The claim administrator found Ms. Becca’s most recent
evaluation by Dr. Grady had determined her WPI to be 47%, which was the same degree
of impairment she had been compensated for in April 2017. Ms. Becca protested this
decision to the OOJ.

The IME reports of Dr. Guberman and Dr. Grady were the only evidence submitted
to the OOJ on appeal. In her closing argument, Ms. Becca argued that the decision of the
claim administrator should be reversed because the IME reports were of equal evidentiary
weight and pursuant to West Virginia Code § 23-4-1g(a) (2003), 3 Ms. Becca was entitled
to prevail with an award of the 51% WPI outlined in Dr. Guberman’s report. By order dated
April 8, 2022, the OOJ discussed the findings of both IME reports in detail, noting that
both Dr. Guberman and Dr. Grady had properly used the Guides, and that the distinction
between the impairment values contained in each report were based solely on each
physician’s interpretive findings regarding Ms. Becca’s range-of-motion (“ROM”) at the
time of her respective evaluations. To that end, the OOJ concluded:

The differences between the two reports stem from what [Ms. Becca] could
do at the time of the respective evaluation (regarding ROM measurements)
and the physician’s opinion of how much of a range of value should be used.
There is no other evidence on record to help determine if one or the other
physician’s findings are more in accord with the other evidence (if there was
any) or more reliable. Because both physicians utilized the Guides properly
and in the same manner, the undersigned finds that the findings of Dr.
Guberman and Dr. Grady are of equal evidentiary weight.

As a result, the OOJ reversed the claim administrator’s decision and awarded Ms. Becca
an additional 4% PPD, increasing her total PPD award from 47% to 51%.

3
West Virginia Code § 23-4-1g(a) provides, in part, that “[i]f, 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.”
2
Eagle timely appealed that decision to the Board, and on August 19, 2022, the Board
entered an order that adopted the findings and conclusions of the OOJ and affirmed the
OOJ’s ruling in favor of Ms. Becca. Eagle now appeals. 4

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 Cty. Comm’n, No. 22-ICA-10, ___ W. Va. ___, ___ S.E.2d ___, 2022
WL 17546598, at *4 (Ct. App. Dec. 9, 2022).

On appeal, Eagle argues that the OOJ failed to properly analyze the evidence when
it determined that the reports of Dr. Grady and Dr. Guberman were of equal evidentiary
weight pursuant to West Virginia Code § 23-4-1g(a). In support, Eagle contends that the
OOJ’s finding is erroneous because both physicians arrived at different levels of

4
The parties’ respective briefs fail to comply with our Rules of Appellate Procedure.
Eagle’s brief does not comport with the requirements of Rules 10(a), 10(c), and 12(e), in
that the brief lacks a table of contents, assignment(s) of error, a statement regarding oral
argument, the sections provided in the brief are not listed in the order required by the Rules,
and the brief’s argument section fails to cite to the record or authority. Eagle’s appendix is
also not paginated as required by Rule 7(b) and fails to conform to the general requirements
for appendices as outlined in Rule 7(c). Ms. Becca’s brief does not comply with Rules
10(a), 10(d), and 12(h). The section headings are mislabeled and contain superfluous
language. The brief fails to separately list the sections in the required order and to use the
section headings outlined by the Rules. All counsel are directed to comply with the
requirements of our Rules of Appellate Procedure in all future filings with this Court.

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impairment while properly applying the Guides. Therefore, Eagle asserts that the Board
erred in affirming the OOJ’s decision.

In workers’ compensation claims, the weighing of evidence is governed by West
Virginia Code § 23-4-1g. Relevant here is subsection (a), which provides:

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
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.

Considering these principles, we conclude that the OOJ’s decision clearly weighed and
considered all the evidence as required by statute. In its order, the OOJ noted the only
evidence submitted were the two IME reports and the OOJ discussed each report’s findings
at length. Based on its evaluation of the IME reports, the OOJ found that both reports rated
the same compensable conditions, and that both Dr. Guberman and Dr. Grady properly
utilized the Guides in calculating Ms. Becca’s WPI. More importantly, in concluding the
reports were entitled to equal evidentiary weight, the OOJ expressly found that absent the
variance in each physician’s subjective ROM interpretations, it had no objective evidence
before it to render one report more reliable than the other.

As such, we find that the OOJ did not err in attributing equal weight to the IME
reports of Dr. Guberman and Dr. Grady. See Williams v. Performance Coal Co., No. 15-
0288, 2016 WL 765751, at *3 (W. Va. Feb. 26, 2016) (memorandum decision), “[b]ecause
the [OOJ], as trier of fact, did not specifically discredit any of the [IME] reports of record,
all of the reports are entitled to equal evidentiary weight.” We also find the OOJ complied
with West Virginia Code § 23-4-1g(a), by awarding Ms. Becca an additional 4% PPD.

Accordingly, we find no error in the Board’s order adopting the findings and
conclusions of the OOJ and reversing the decision of the claim administrator. Because we
find no ground for reversal under West Virginia Code § 23-5-12a(b), we affirm the Board’s
order increasing Ms. Becca’s total PPD award from 47% to 51%.

4
Affirmed.
ISSUED: February 2, 2023

CONCURRED IN BY:

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

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