Patterson UTI Drilling Co, LLC v. Johnny O. Jones

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
PATTERSON UTI DRILLING CO., LLC, June 15, 2023
Employer Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 23-ICA-44 (JCN: 2019019301)

JOHNNY O. JONES,
Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Patterson UTI Drilling Co., LLC1 (“Patterson”) appeals the January 5,
2023, order of the Workers’ Compensation Board of Review (“Board”). Respondent
Johnny O. Jones filed a timely response.2 Patterson did not file a reply. The issue on appeal
is whether the Board erred in reversing the claim administrator’s order granting Mr. Jones
a 15% permanent partial disability (“PPD”) award and instead granting him a 34% 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 March 6, 2019, Mr. Jones, a Patterson floor hand, was injured when he was
working on an oil rig and his harness broke. He fell approximately twelve feet, hit his face
and head on an oil drum at the base of the rig, and sustained severe injuries. He was taken
to Ruby Memorial Hospital in Morgantown, West Virginia, where he was admitted and
treated for multiple skull and facial fractures, brain hemorrhages, traumatic brain injury,

1
For reasons not readily apparent in the appendix record, the Petitioner has
substituted “Patterson-UTI Energy, Inc.” for the employer that was identified below as
“Patterson UTI Drilling Co., LLC.” Consistent with the action of the Supreme Court of
Appeals of West Virginia in Delbert v. Murray American Energy, Inc., W. Va., n.1, 880
S.E.2d 89, 91 n.1 (2022), we use the name of the employer as designated in the order on
appeal: Patterson UTI Drilling Co., LLC.
2
Petitioner is represented by Jeffrey B. Brannon, Esq. Respondent is represented by
Reginald D. Henry, Esq., and Lori J. Withrow, Esq.

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hematomas, and soft tissue injuries. He was discharged on March 19, 2019, and was
transferred to a rehabilitation facility in Charleston, West Virginia, for physical therapy
and speech therapy.

The claim administrator issued an order dated April 2, 2019, holding the claim
compensable for unspecified intracranial injury with loss of consciousness of unspecified
duration and unspecified fracture of facial bones. By subsequent order dated October 25,
2019, the diagnoses of cervical sprain, sprain of the right knee, and sprain of the left
shoulder were added as compensable diagnoses.

On September 23, 2020, ChuanFang Jin, M.D., performed an independent medical
evaluation (“IME”) to assess Mr. Jones’ permanent disability rating. She found that Mr.
Jones had reached maximum medical improvement for his head injury, facial fractures,
cervical sprain, and right knee sprain. Using the American Medical Association’s Guides
to the Evaluation of Permanent Impairment (4th ed. 1993) (“Guides”), she found 14%
whole person impairment (“WPI”) from the head injury and 1% WPI for the facial
fractures, for a total 15% WPI rating for his March 6, 2019, injury. On that basis, the claim
administrator issued a 15% PPD award to Mr. Jones on January 6, 2021. Mr. Jones
protested.

On July 28, 2021, Bruce A. Guberman, M.D., performed an IME on Mr. Jones.
Using the Guides, he found 3% WPI for headaches, 1% for facial disfigurement, 7% for
dysesthesia and sensory loss on the left side of the face in the distribution of the trigeminal
nerve, and 14% for mental status impairment. For the cervical spine, Dr. Guberman placed
Mr. Jones in Category II-B of Table 75 for 4% WPI and 7% WPI for range of motion
abnormalities, which combined for an 11% WPI from the Range of Motion model, which
was adjusted to 8% WPI from Table §85-20-E, Cervical Spine Category II. He found 0%
WPI for the right knee and 6% for the left shoulder. Combining all figures, he found an
additional 19% impairment over the 15% Mr. Jones had previously received, or a total of
34% WPI.

On November 4, 2021, Robert B. Walker, M.D., performed an IME on Mr. Jones.
Using the Guides, he found 9.5 or 10% WPI for range of motion abnormalities of the
cervical spine. He combined the 10% with 4% WPI from Table 75, for a 14% WPI from
the Range of Motion Model. This was adjusted to 8% WPI from Cervical Category II
pursuant to Rule 20. Dr. Walker found 0% impairment for the right knee. He found 7%
WPI for the trigeminal nerve component of the facial injury, 2% for unilateral facial
paralysis, and 14% for the central nervous system component of the head injury. Dr.
Walker combined these values for a total of 30% WPI for the March 6, 2019, injury.

On May 24, 2022, David L. Soulsby, M.D., performed another IME. Using the
Guides, he found 0% impairment for headaches, 1% for facial fractures, 1% for the
trigeminal nerve injury, and 14% for memory loss. Regarding the cervical spine, he found

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16% WPI under the Range of Motion Model, which he adjusted to 8% from Cervical
Category II under Table § 85-20-E. Dr. Soulsby apportioned 4% of the cervical spine
impairment to preexisting degenerative disc disease that he observed was noted on a June
29, 2019, cervical MRI. He found 3% WPI for the left shoulder injury and 0% for the right
knee. Combining all values, he found a total of 21% WPI, or an additional 6% over the
15% award previously received. Dr. Soulsby found fault in the reports of Drs. Guberman
and Walker for failing to apportion and for overinflating ratings in areas like headaches
and trigeminal numbness.

On August 23, 2022, Jennifer Lultschik, M.D., performed another IME. Using the
Guides, she found 14% WPI resulting from intracranial damage, 1% for loss of sensation
in the maxillary branch of the left trigeminal nerve, 0% for headaches, and 0% for mild
asymmetry of the nasolabial folds. She found 1% impairment for range of motion
abnormalities in the cervical spine and adjusted it to 0% from Cervical Category I under
Table § 85-20-E. She found 4% impairment for the left shoulder, but because she also
found 4% of the uninjured right shoulder, she determined that Mr. Jones had 0% WPI of
the left shoulder due to the compensable injury. She also found 0% for the right knee.
Combining all values, Dr. Lultschik found 15% WPI for the injuries sustained on March
6, 2019. She indicated she disagreed with the findings of Drs. Guberman and Walker,
stating that inappropriate Tables and measures of impairment were used and that there was
a failure to apportion preexisting impairment. She further believed the measurements she
obtained during her evaluation were a more accurate representation of Mr. Jones’ function.

Both Patterson and Mr. Jones submitted closing arguments3 to the Board and all five
IME reports were considered. The Board noted that evidence of PPD “in the form of
testimony and reports by physicians and other experts may be submitted. The fact that a
particular expert may find a certain percentage of permanent partial disability does not
mean the Board of Review is required to accept it.” The Board observed that Dr. Jin and
Dr. Walker both failed to evaluate Mr. Jones’ compensable left shoulder and that their
reports were therefore unreliable. The Board found that Dr. Soulsby’s rating was unreliable
because he apportioned half of Mr. Jones’ 8% cervical impairment solely on the basis of
an MRI performed after the compensable injury with no other corroborating evidence to
establish a preexisting impairment, in contravention of this Court’s guidance in Duff v.
Kanawha County Commission, 247 W. Va. 550, 882 S.E.2d 916 (Ct. App. 2022). Next, the
Board found Dr. Lultschik’s report to be unreliable because she was the only evaluator who
did not find impairment for Mr. Jones’ compensable facial fractures. The Board concluded
that Dr. Guberman included a rating for all of Mr. Jones’ compensable components and his
report was a reliable indicator of Mr. Jones’ permanent impairment from his occupational
injury. Therefore, the Board concluded that Mr. Jones has a 34% WPI from his March 6,

3
Unfortunately, the Board’s order does not provide any information about what the
parties argued in their closing arguments.
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2019, injury, and so ordered on January 5, 2023. It is from this order that Patterson now
appeals.

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. at __, 882 S.E.2d at 921 (Ct. App. 2022).

On appeal, Patterson argues that the Board erred in finding that Dr. Guberman’s
report was the sole reliable report because it did not demonstrate why the reports of Drs.
Jin, Soulsby, and Lultschik were unreliable. Furthermore, Patterson argues that the Board
should not have dismissed the criticisms of Dr. Guberman’s findings lodged by Dr. Soulsby
and Dr. Lultschik. However, we find no support for these arguments in the record. The
Board’s order clearly states its rationale for finding the reports of Drs. Jin, Soulsby,
Lultschik, and Walker unreliable. The Board noted that it weighed all reliable, probative,
and substantial evidence in determining Mr. Jones’ PPD award but that in doing so, it was
not required to accept the opinion of any particular expert. This would include the opinions
of any experts whom it deemed to have authored unreliable reports. Consequently, we
conclude that the Board was not clearly wrong in finding that Dr. Guberman’s report was
the sole reliable indicator of the claimant’s permanent impairment from his occupational
injury, or in disregarding the unreliable opinions of Dr. Soulsby and Dr. Lultschik
concerning Dr. Guberman’s methodology.

Finding no error in the Board’s January 5, 2023, order, we affirm.

Affirmed.

ISSUED: June 15, 2023
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CONCURRED IN BY:

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

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