ICG Tygart Valley, LLC v. Edgar R. Greene

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ICG TYGART VALLEY, LLC, September 26, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS

vs.) No. 23-ICA-228 (JCN: 2022006007) OF WEST VIRGINIA

EDGAR R. GREENE,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner ICG Tygart Valley, LLC (“Tygart”) appeals the May 3, 2023, order of
the Workers’ Compensation Board of Review (“Board”). Respondent Edgar R. Greene
filed a response. 1 Tygart did not file a reply. The issue on appeal is whether the Board erred
in reversing the claim administrator’s (1) August 12, 2022, order granting Mr. Greene a
13% permanent partial disability (“PPD”) award and (2) September 26, 2022, order, which
denied authorization for a thoracic MRI. The Board, instead, authorized the thoracic MRI
and awarded Mr. Greene an additional 14% PPD for a total award of 27% PPD.

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.

Mr. Greene was injured while working for Tygart on September 24, 2021, when he
was hit by a mine cable. Mr. Greene suffered extensive injuries including fractures to the
C6 and C7 vertebra, a fracture of the right T1 transverse process, fractures of several ribs,
a right shoulder contusion, damage to both lungs, fractured bones in his right arm, and
damage to bones in his throat. 2

On August 12, 2022, the claim administrator granted Mr. Greene a 13% PPD award
based on the report of Chuan Fang Jin, M.D. 3 The claim administrator issued an order dated

1
Tygart is represented by Celeste E. Webb, Esq., and John P. Fuller, Esq. Mr.
Greene is represented by Robert F. Vaughan, Esq.
2
The compensability order was not submitted into the record below.
3
This report was not submitted into the record below.
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September 26, 2022, which denied authorization for a thoracic MRI and a lumbar MRI.
Mr. Greene protested these orders.

Mr. Greene was evaluated by Bruce Guberman, M.D., on November 3, 2022. Using
the American Medical Association’s Guides to the Evaluation of Permanent Impairment
(4th ed. 1993), Dr. Guberman found that Mr. Greene had an 8% whole person impairment
(“WPI”) for the cervical spine, a 7% WPI for the thoracic spine, and a 15% WPI for the
right upper arm injury, which includes the right shoulder, right wrist, and right forearm.
Dr. Guberman combined these ratings and converted them for a total of 27% WPI.

On May 3, 2023, the Board reversed the claim administrator’s August 12, 2022,
order granting Mr. Greene a 13% PPD and the September 26, 2022, order, which denied
authorization for a thoracic MRI award. The Board, instead, authorized the thoracic MRI
and granted Mr. Greene an additional 14% PPD for a total award of 27% PPD. The Board
found that Mr. Greene established that he suffered a 27% WPI and that a thoracic MRI was
medically necessary and reasonably related to the compensable injuries. Tygart 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, Tygart argues that Dr. Guberman’s report is invalid because it includes
a rating for a noncompensable diagnosis (i.e., a thoracic spine injury), and that the claim
administrator’s order based on Dr. Jin’s recommendation for a 13% PPD award should
have been affirmed. The employer further argues that the MRI of the thoracic spine should

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not have been authorized because there is no compensable injury to the thoracic spine. We
disagree.

Here, the Board found Dr. Guberman’s report was reliable and persuasive, and
therefore, adopted his finding of a 27% WPI. The Board indicated that Tygart offered no
evidence of its own, and further, Tygart cited Dr. Guberman’s list of the compensable
injuries, including a fracture of the right T1 transverse process, in its closing statement
submitted to the Board. The Board specifically noted that Dr. Jin’s report had not been
submitted and could not be considered. The Board granted Mr. Greene a 27% PPD award
and authorized a thoracic MRI based on its review of the available evidence.

Upon review, we conclude that the Board was not clearly wrong in finding that Dr.
Guberman’s report was reliable evidence establishing that Mr. Greene has a 27% WPI. We
find that it was reasonable for the Board to accept that the fracture of the right T1 transverse
process was compensable given the fact that Tygart cited a list including that diagnosis in
its closing argument submitted to the Board. Further, Dr. Guberman’s inclusion of a
fracture of the right T1 transverse process in his list of compensable conditions is
corroborated by the hospital emergency room report from Mr. Greene’s initial treatment
on the date of the injury. The emergency room notes document that a CT revealed a thoracic
transverse process fracture. Thus, we find that the Board was not clearly wrong in finding
that the fracture of the right T1 transverse process was a compensable condition in this
claim. Further, we find that the Board did not err in authorizing a thoracic MRI, based on
the foregoing findings.

We note that Tygart is not alleging any excusable mistake or error as a reason for
its failure to offer the report of Dr. Jin into evidence, nor did Tygart acknowledge its
failure. 4 “Our general rule is that nonjurisdictional questions . . . raised for the first time on
appeal, will not be considered.” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818,
821, 679 S.E.2d 650, 653 (2009) (citing Shaffer v. Acme Limestone Co., Inc., 206 W. Va.
333, 349 n. 20, 524 S.E.2d 688, 704 n. 20 (1999)). Thus, we decline to review and consider
the report of Dr. Jin in this appeal.

Finding no error in the Board’s May 3, 2023, order, we affirm.

Affirmed.

ISSUED: September 26, 2023

We note that when the parties provide the Board, and by extension this Court, with
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an adequate record/appendix it greatly assists the decision-making process.

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CONCURRED IN BY:

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

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