Arcelormittal USA, LLC v. David Saunders

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ARCELORMITTAL USA, LLC, November 1, 2023
Employer Below, Petitioner
EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
vs.) No. 23-ICA-281 (JCN: 2018003289) OF WEST VIRGINIA

DAVID SAUNDERS,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner ArcelorMittal USA, LLC, (“ArcelorMittal”) appeals the May 10, 2023,
order of the Workers’ Compensation Board of Review (“Board”). Respondent David
Saunders filed a response. 1 ArcelorMittal did not file a reply. The issue on appeal is
whether the Board erred in reversing the claim administrator’s order, which granted Mr.
Saunders a 3% permanent partial disability (“PPD”) award and instead granted him an 8%
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 July 26, 2017, while employed by ArcelorMittal, Mr. Saunders sustained injuries
to his lower back and pelvis when he was hit by a truck. The claim administrator issued an
order dated May 16, 2018, holding the claim compensable for a contusion of the lower
back and pelvis.

Prasadarao Mukkamala, M.D., issued a report dated December 4, 2019, detailing
his evaluation of Mr. Saunders. Mr. Saunders reported low back pain that radiated to the
right lower extremity, mid-back pain, and neck pain. Dr. Mukkamala opined that Mr.
Saunders suffered a contusion to the lower back and pelvis. Dr. Mukkamala further opined
that Mr. Saunders was at maximum medical improvement (“MMI”) for his compensable
injury. Using the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993) (“Guides”) and the West Virginia Code of State Rules § 85-20

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ArcelorMittal is represented by Jeffrey B. Brannon, Esq. Mr. Saunders is
represented by Gregory S. Prudich, Esq.

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(2006) (“Rule 20”), Dr. Mukkamala found that Mr. Saunders had 8% whole person
impairment (“WPI”) related to the low back and 0% WPI related to the pelvis. Dr.
Mukkamala opined that apportionment was appropriate after noting radiographic evidence
of preexisting degenerative spondyloarthropathy. Dr. Mukkamala apportioned 5% of the
total impairment to preexisting degenerative spondyloarthropathy and opined that 3% WPI
was related to the compensable injury. On January 14, 2020, the claim administrator issued
an order granting Mr. Saunders a 3% PPD award, based on the report of Dr. Mukkamala.
Mr. Saunders protested this order.

On July 7, 2022, Bruce Guberman, M.D., issued a report regarding his evaluation
of Mr. Saunders. Dr. Guberman opined that Mr. Saunders suffered a post-traumatic strain
of the lumbosacral spine superimposed on preexisting but dormant degenerative joint and
disc disease and that Mr. Saunders was at MMI for his compensable injury. Using the
Guides and Rule 20, Dr. Guberman found that Mr. Saunders had 8% WPI related to the
compensable injury. Dr. Guberman noted the radiographic evidence of preexisting
degenerative disc disease in Mr. Saunders’ spine. However, Dr. Guberman determined that
there was no reasonable basis to apportion for the preexisting degenerative disc disease
because there was no evidence that Mr. Saunders had experienced any prior symptoms or
received any prior treatment for the preexisting condition and there was no evidence that
the preexisting condition affected his activities of daily living or ability to work prior to his
compensable injury. Thus, Dr. Guberman found that the entire 8% WPI was associated
with the compensable injury.

Mr. Saunders was evaluated by David Soulsby, M.D., who issued a report dated
December 6, 2022. Dr. Soulsby diagnosed Mr. Saunders with lumbar sprain/strain, thoracic
sprain/strain, and lumbar degenerative disc disease and found that he was at MMI for his
compensable injury. Using the Guides and Rule 20, Dr. Soulsby opined that Mr. Saunders
had 8% WPI related to the lumbar spine. Dr. Soulsby apportioned 4% of the lumbar spine
impairment to preexisting degenerative disc disease. After apportionment, Dr. Soulsby
found that Mr. Saunders had 4% WPI related to the compensable injury.

On May 10, 2023, the Board issued an order reversing the claim administrator’s
order, which granted Mr. Boles a 3% PPD award and instead granted Mr. Saunders an 8%
PPD award. The Board found that Mr. Saunders had established that he was entitled to an
8% PPD award based on the report of Dr. Guberman. ArcelorMittal 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

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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, ArcelorMittal argues that Drs. Mukkamala and Soulsby appropriately
apportioned for Mr. Saunders preexisting degenerative conditions based on radiographic
findings and post-injury range of motion findings making their opinions more reliable than
that of Dr. Guberman. ArcelorMittal further argues that Dr. Guberman’s failure to
appropriately apportion for the preexisting conditions renders his opinion unreliable. We
disagree.

In Duff, this Court found that:

The Supreme Court of Appeals of West Virginia has previously recognized
that radiographic evidence of degenerative changes alone is not sufficient to
allow apportionment for preexisting injury. There must be something more,
some evidence of a detrimental effect on work or the activities of daily living.
Where such evidence of impairment is lacking, the Court has found that
apportionment was not appropriate. See Galaxy Distributing of WV, Inc. v.
Spangler, No. 19-0803, 2020 WL 6559079 (W. Va. Nov. 6, 2020)
(memorandum decision) (unanimous decision) (the Board did not err in
finding that apportionment was arbitrary and speculative where preexisting
changes to right shoulder did not appear to affect the claimant’s work or daily
activities); Minor v. West Virginia Division of Motor Vehicles, No. 17-0077,
2017 WL 6503113, at *2 (W. Va. Dec. 19, 2017) (memorandum decision)
(3-2 decision reversing Board of Review decision apportioning for
preexisting condition) (“While the 2004 x-ray may have shown degenerative
changes [to the right knee], those changes did not appear to affect Mr.
Minor’s ability to work or his activities of daily living. Therefore, we agree
with the Office of Judges’ findings that . . . . apportionment of the impairment
rating due to the 2004 x-ray was improper. . . .”).

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Duff at 558, 882 S.E.2d at 924.

Here, the Board found that Dr. Guberman’s report was the most reliable because he
did not apportion for Mr. Saunders’ preexisting degenerative disc disease and spondylosis
when there was no evidence that those conditions were symptomatic prior to his
compensable injury nor evidence that the conditions affected Mr. Saunders’ work or daily
life. The Board further found that the reports of Drs. Soulsby and Mukkamala were
unpersuasive because they inappropriately apportioned for the preexisting degenerative
disc disease and spondylosis based solely on radiographic evidence and post-injury range
of motion findings. Ultimately, the Board found that Mr. Saunders was entitled to an 8%
PPD award based on Dr. Guberman’s report.

Upon review, we conclude that the Board was not clearly wrong in finding that it
was inappropriate to apportion for Mr. Saunders’ preexisting condition when, prior to the
compensable injury, the condition was asymptomatic, did not affect his life or work, and
was only documented by imaging evidence. Further, the Board was not clearly wrong in
finding that Dr. Guberman’s report was more persuasive than the reports of Drs. Soulsby
and Mukkamala, because Dr. Guberman appropriately refrained from apportioning for an
asymptomatic preexisting condition. Finally, the Board was not clearly wrong in
determining that Mr. Saunders is entitled to an 8% PPD award based on Dr. Guberman’s
report.

Accordingly, we affirm the Board’s May 10, 2023, order.

Affirmed.

ISSUED: November 1, 2023

CONCURRED IN BY:

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

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