Mingo County Board of Education v. Michael Lucas

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

MINGO COUNTY BOARD OF EDUCATION, FILED
Employer Below, Petitioner August 6, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
v.) No. 25-ICA-60 (JCN: 2023021351) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

MICHAEL LUCAS,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Mingo County Board of Education (“MCBOE”) appeals the February 4,
2025, order of the Workers’ Compensation Board of Review (“Board”). Respondent
Michael Lucas filed a response.1 MCBOE did not reply. The issue on appeal is whether the
Board erred in reversing the claim administrator’s order, which granted Mr. Lucas no
permanent partial disability (“PPD”) award, and instead granting him a 13% PPD award.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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. Lucas filed an Employees’ and Physicians’ Report of Occupational Injury or
Disease dated May 19, 2023, Mr. Lucas filed a workers’ compensation claim for a work-
related injury that occurred when Mr. Lucas injured his head, shoulder, back, leg, and hip
when he fell backward on concrete on May 16, 2023. 2 The physician’s section of the claim
application was completed by a medical provider at Tug Valley ARH on May 19, 2023.

1
MCBOE is represented by Steven K. Wellman, Esq., and James W. Heslep, Esq.
Mr. Lucas is represented by William B. Gerwig III, Esq.
2
Prior to the compensable injury, medical records indicate that Mr. Lucas has been
seen and treated for back pain in the lumbar region since 2016. Mr. Lucas was diagnosed
with lumbar radiculopathy and noted to have lumbar degenerative disc disease and
spondylosis in the lumbar region for which he received steroid injections. Mr. Lucas
complained of some cervical pain to Dr. Laura Ashby-Jones in 2019, but clinical findings
were negative. According to the record, a CT scan of the cervical spine was obtained on
May 10, 2022, which revealed cervical degenerative disc disease. A thoracic CT scan taken
on the same day was negative.

1
The provider indicated that Mr. Lucas had sustained occupational injuries to his head, hip,
back, shoulder, and leg. On June 20, 2023, the claim administrator issued an order holding
the claim compensable for a contusion of the thorax, a contusion of the scalp, and a sprain
of the cervical spine.

By Diagnosis Update dated August 7, 2023, Keith Hall, M.D., requested that right
shoulder pain and right shoulder rotator cuff tear be added as compensable diagnoses in
the claim. Dr. Hall noted that Mr. Lucas had a history of right rotator cuff repair on
February 21, 2023, that he sustained a new work-related injury to his right shoulder on
May 16, 2023, and a right shoulder MRI was ordered to evaluate for new right rotator cuff
pathology.

David Soulsby, M.D., performed an independent medical evaluation (“IME”) of Mr.
Lucas on October 18, 2023. Mr. Lucas reported that on May 16, 2023, he was walking a
service dog on a leash when he tripped on the leash and fell, striking his head, neck,
midback and lower back. At the time of the evaluation, Mr. Lucas complained of constant
midline pain throughout his neck with radiation to both upper extremities, throbbing in the
thoracic spine, pain in the lower lumbar region to the lower extremities, right shoulder pain,
and numbness in his great toe bilaterally. Mr. Lucas reported a prior injury to his low back
three years prior. Dr. Soulsby found Mr. Lucas’ cervical and thoracic injuries to be at
maximum medical improvement (“MMI”). Using the American Medical Association’s
Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“Guides”) and West
Virginia Code of State Rules § 85-20 (“Rule 20”), Dr. Soulsby found Mr. Lucas to have
0% impairment for both the cervical and thoracic spine related to the compensable injury.
Dr. Soulsby opined that there was a lack of evidence of a specific injury involving the
cervical and thoracic regions. The claim administrator issued an order dated October 30,
2023, granting Mr. Lucas no PPD award based upon Dr. Soulsby’s report of October 18,
2023. Mr. Lucas protested this order.

A right shoulder MRI performed on December 16, 2023, revealed a recurrent full-
thickness tear of the supraspinatus with medial retraction, a nondisplaced degenerative
tearing of the labrum, subacromial/subdeltoid bursitis, and a complete tear of the biceps
tendon with distal retraction.

On December 20, 2023, Mr. Lucas was evaluated by Bruce Guberman, M.D. Mr.
Lucas denied any cervical or thoracic symptoms prior to the compensable injury of May
16, 2023, other than anterior neck pain that was evaluated in May of 2022 and the
symptoms resolved. Dr. Guberman found that Mr. Lucas was at MMI. Using the Guides
and Rule 20, Dr. Guberman found Mr. Lucas to have a total of 8% whole person
impairment (“WPI”) related to the cervical spine. Dr. Guberman opined that 1% should be
apportioned due to the evidence of preexisting degenerative joint disease, for a total of 7%
WPI related to the compensable injury. For the thoracic spine, Dr. Guberman found 6%

2
WPI related to the compensable injury, and he opined that apportionment was not
necessary because there was no evidence of severe degenerative changes. Dr. Guberman
found Mr. Lucas to have a combined total of 13% WPI for his compensable cervical and
thoracic injuries.

Mr. Lucas was seen by Dr. Hall on December 27, 2023, for follow-up of his right
shoulder. Mr. Lucas complained of pain, decreased mobility, weakness, and popping in his
right shoulder. Mr. Lucas reported that he had previously undergone right rotator cuff
repair before reinjuring his right shoulder. Dr. Hall assessed Mr. Lucas with a traumatic
complete tear of the right rotator cuff, and he recommended right shoulder arthroscopy and
rotator cuff repair. On January 16, 2024, the claim administrator authorized Dr. Hall’s
request for right shoulder arthroscopy.

On June 25, 2024, Dr. Soulsby performed a second IME of Mr. Lucas and found
that he had a lot of weakness in the right shoulder girdle. Dr. Soulsby opined that it was
unlikely that Mr. Lucas would ever recover strength equal to the opposite extremity;
however, his right shoulder could still improve. Accordingly, Dr. Soulsby opined that Mr.
Lucas had not reached MMI in regard to his right shoulder. Regarding the claimant’s
cervical and thoracic injuries, Dr. Soulsby stated, “Nothing was found during today’s
examination which changes my opinion concerning the classification or impairment
rating.” In an IME addendum report from Dr. Soulsby dated August 31, 2024, he reiterated
his opinion that Mr. Lucas did not suffer a compensable spinal injury and noted that he
classified Mr. Lucas’ cervical and thoracic spine under Category I of Tables 85-2-D and E
in Rule 20.

Mr. Lucas was evaluated by Austin Nabet, D.O., on October 4, 2024. Dr. Nabet
found Mr. Lucas to be at MMI. Using the Guides and Rule 20, Dr. Nabet placed Mr. Lucas
in Cervical Category II of Table 85-20-E and found him to have a total of 5% WPI related
to the cervical spine and then apportioned the entirety of Mr. Lucas’s 5% impairment to
preexisting cervical spondylosis. Dr. Nabet did not explain his reasoning for
apportionment. For the thoracic spine, Dr. Nabet placed Mr. Lucas in Thoracic Category I
of Table 85-20-D and found that Mr. Lucas had 0% impairment related to the compensable
injury.

On February 4, 2025, the Board reversed the claim administrator’s order granting
Mr. Lucas no PPD award and granted him a 13% PPD award. The Board found that Dr.
Guberman’s IME was the most persuasive report of record. MCBOE 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:

3
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.

Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).

MCBOE argues that there is no objective medical documentation that Mr. Lucas
suffered a significant injury to his thoracic spine. Further, MCBOE argues that the Board
mischaracterized Dr. Soulsby’s findings in order to discredit his impairment rating. Finally,
MCBOE argues that the Board clearly drew every possible inference in Mr. Lucas’ favor
and issued a decision that is contrary to a preponderance of the evidence and “harkens back
to the ‘rule of liberality’ era of workers' compensation jurisprudence.” We disagree.

In Duff, the SCAWV held that:

Under West Virginia Code § 23-4-9b (2003), the employer has the burden of
proving apportionment is warranted in a workers’ compensation case. This
requires the employer to prove the claimant ‘has a definitely ascertainable
impairment resulting from’ a preexisting condition(s). This requires that the
employer prove that the preexisting condition(s) contributed to the claimant’s
overall impairment after the compensable injury and prove the degree of
impairment attributable to the claimant’s preexisting condition(s).

Duff at syl. pt. 6.

Here, the Board determined that Mr. Lucas established that he was entitled to a 13%
PPD award. The Board found that the report of Dr. Soulsby was not reliable as he stated
that there was a lack of evidence of injury in the thoracic and cervical spine, when injuries
to both had been held compensable. Moreover, the medical records predating the
compensable injury show few complaints of cervical or thoracic symptoms, and there is no

4
evidence of continuous cervical or thoracic symptoms immediately prior to the
compensable injury. According to Dr. Soulsby’s evaluations, after the compensable injury,
Mr. Lucas complained of cervical and thoracic symptoms to his treating physicians, and
his own report documents current cervical and thoracic symptoms. As a result, Dr.
Soulsby’s conclusion that Mr. Lucas showed no evidence of cervical and thoracic
impairment from the compensable injury is contrary to the evidence of record. Finally, the
copy of Dr. Soulsby’s evaluation provided to this Court does not contain an approved Low
Back Examination form which is required for all spine impairment evaluations.3

The Board also found that pursuant to Duff, Dr. Nabet’s report is unreliable as he
failed to offer any rationale to explain his decision to apportion the entirety of the cervical
impairment to a preexisting condition. The only remaining IME was Dr. Guberman’s
report, and the Board found that he properly evaluated Mr. Lucas under the Guides and
Rule 20 and, further, that he adequately explained his reasoning for apportionment.

Upon review, we conclude that the Board was not clearly wrong in finding that Mr.
Lucas established that he is entitled to a 13% PPD award. Further, we conclude that the
Board was not clearly wrong in finding that Dr. Guberman’s report was the only reliable
IME of record.

We find no merit in MCBOE’s arguments regarding the Board’s analysis and
findings related to the physician reports and medical evidence. MCBOE has established
that it strongly disagrees with the Board’s decision; however, it failed to establish that the
Board was clearly wrong. As the Supreme Court of Appeals of West Virginia has set forth,
“[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential
ones which presume an agency’s actions are valid as long as the decision is supported by
substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473
S.E.2d 483 (1996). With this deferential standard of review in mind, we cannot conclude
that the Board was clearly wrong in reversing the claim administrator’s order granting Mr.
Lucas no award and granted him a 13% PPD award.

3
[An impairment] report must state the factual findings of all tests, evaluations, and
examinations that were conducted and must state the manner in which they were conducted
so as to clearly indicate their performance in keeping with the requirements of the Guides.
For any evaluation and examination of a compensable back injury, the back examination
form previously adopted by the Workers' Compensation Commission must be completed
and submitted with the narrative report. A copy of the current edition of the back
examination form can be obtained from the Commission, Insurance Commissioner, private
carrier or self-insured employer, whichever is applicable. A report and opinion submitted
regarding the degree of permanent whole body medical impairment as a result of a back
injury without a completed back examination form shall be disregarded. W. Va. Code R.
85-20-66.2 (2006) (emphasis added).
5
Accordingly, we affirm the Board’s February 4, 2025, order.

Affirmed.

ISSUED: August 6, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

6