Billings v. Sterling Jewelers, Inc. ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
MARGARET BILLINGS,
FILED
Claimant Below, Petitioner
May 20, 2021
EDYTHE NASH GAISER, CLERK
vs.) No. 20-0131 (BOR Appeal No. 2054493) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
(Claim No. 2013032657)
STERLING JEWELERS, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Margaret Billings, by counsel Reginald D. Henry, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Sterling
Jewelers, Inc., by counsel Mark J. Grigoraci, filed a timely response.
The issue on appeal is the amount of permanent partial disability sustained in the claim.
In an Order dated June 20, 2018, the claims administrator found that Ms. Billings has been fully
compensated by a prior 8% permanent partial disability award and determined that she was not
entitled to an additional award. On August 16, 2019, the Workers’ Compensation Office of
Judges (“Office of Judges”) affirmed the claims administrator’s decision. This appeal arises from
the Board of Review’s Order dated January 24, 2020, in which the Board affirmed the Order of
the Office of Judges.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under W. Va. Code § 23-5-15, in relevant part, as follows:
(b) In reviewing a decision of the board of review, the supreme court of appeals
shall consider the record provided by the board and give deference to the board’s
findings, reasoning and conclusions[.]
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(c) If the decision of the board represents an affirmation of a prior ruling by both
the commission and the office of judges that was entered on the same issue in the
same claim, the decision of the board may be reversed or modified by the
Supreme Court of Appeals only if the decision is in clear violation of
Constitutional or statutory provision, is clearly the result of erroneous conclusions
of law, or is based upon the board’s material misstatement or mischaracterization
of particular components of the evidentiary record. The court may not conduct a
de novo re-weighing of the evidentiary record. . . .
See Hammons v. W. Va. Office of Ins. Comm’r, 235 W. Va. 577, 775 S.E.2d 458, 463-64 (2015).
As we previously recognized in Justice v. W. Va. Office Insurance Commission, 230 W. Va. 80,
83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions of law arising
in the context of decisions issued by the Board. See also Davies v. W. Va. Office of Ins. Comm’r,
227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011). With these standards in mind, we proceed to
determine whether the Board of Review committed error in affirming the decision of the Office
of Judges.
Ms. Billings sustained an injury to her low back on May 24, 2013, while pulling down
the security gate at the entrance of her employer’s store within the Mercer Mall. She initially
received treatment at Princeton Community Hospital on May 27, 2013, and was diagnosed as
suffering from a lumbosacral strain. By Order dated June 26, 2013, the claims administrator held
the claim compensable for back pain.
Ms. Billings underwent an MRI of her lumbar spine on July 11, 2013. The MRI revealed
multilevel degenerative disc disease with significant bulging of the annulus to the left and a tiny
central disc protrusion with mild compromise of the thecal sac at L3-4. Degenerative disc disease
with bulging of the annulus, moderate bilateral foraminal narrowing, and mild facet arthropathy
were noted at L4-5. Mild foraminal narrowing and bulging of the annulus were noted at L2-3.
On January 16, 2014, Robert Kropac, M.D., an orthopedist, completed a Diagnosis
Update form requesting the addition of disc protrusion as a secondary condition. He would later
testify at a deposition held on June 24, 2014, that he treated Ms. Billings from July 17, 2013,
through April of 2014, and diagnosed her injury as a lumbosacral musculoligamentous strain
superimposed on degenerative disc disease and degenerative arthritis with spinal stenosis and a
left lower extremity radicular component. Dr. Kropac testified that Ms. Billings had a tiny disc
protrusion at L3-4 and that the she was asymptomatic prior to her work injury of May 24, 2013.
Regarding impairment related to the L3-4 disc, Dr. Kropac stated that he was absolutely sure that
the L3-4 disc herniation is not causing any type of radiculopathy. By Decision of the Office of
Judges dated October 24, 2014, disc protrusion was accepted as a secondary condition. 1
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On February 23, 2014, the claims administrator denied a request to add disc protrusion
at L3-4 as a secondary condition in the claim. Ms. Billings protested the claims administrator’s
decision. As a result of her protest, the Office of Judges reversed the claims administrator’s
February 23, 2014, decision and accepted disc protrusion as a secondary condition in the claim.
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Robert Walker, M.D., performed an independent medical evaluation on December 8,
2017. At the time of the evaluation, Ms. Billings complained of pain in her lower back extending
down her left leg. Physical examination revealed tenderness to palpation over the paraspinal
areas of L3-4. Dr. Walker found decreased motor strength, sensation, and reflexes in the left
lower extremity. Using the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993) (“AMA Guides”), Dr. Walker found a total of 18% whole
person impairment for abnormal lumbar range of motion and Grade 2 sensory and Grade 5 motor
deficits under Table 11 and 12 of the AMA Guides. Applying West Virginia Code of State Rules
§ 85-20 (“Rule 20”), Dr. Walker placed Ms. Billings in Category III of West Virginia Code of
State Rules § 85-20-C due to significant signs of radiculopathy, including dermatomal pain,
reflex changes, atrophy, and sensory changes. He apportioned 2% of her overall impairment for
MRI evidence of pre-existing degenerative changes.
Ms. Billings underwent an independent medical evaluation with A. E. Landis, M.D., on
March 20, 2018. Physical examination revealed some mild diffuse tenderness to palpation over
the lumbosacral spine at the midline and over the sacrum. There was no evidence of motor
weakness, reflex or sensory abnormalities, or muscle atrophy. Dr. Landis concluded that Ms.
Billings had suffered a lumbar sprain superimposed upon pre-existing degenerative changes as a
result of the compensable injury of May 24, 2013. She was found to be at her maximum degree
of medical improvement. Dr. Landis opined that her prior 5% permanent partial disability award
more than adequately compensates for her residual permanent impairment due to the
compensable injury. 2 He found no evidence of progression of her impairment and stated that any
progression is due to degenerative arthritis.
Based upon the assessment of Dr. Landis, the claims administrator entered an Order on
June 20, 2018, finding that Ms. Billings had been fully compensated by a prior 8% permanent
partial disability award and was entitled to no additional award in the claim. Ms. Billings
protested the claims administrator’s decision.
On October 4, 2018, Michael Kominksy, D.C., treated Ms. Billings for her complaints of
persistent low back pain with leg pain and numbness. In his independent medical evaluation
report, Dr. Kominsky stated that physical examination revealed sensory and motor abnormalities
in the left lower extremity in the L4 distribution. Using the AMA Guides, Dr. Kominsky found
5% whole person impairment under Table 75 and 9% whole person impairment for abnormal
lumbar range of motion. Additionally, Dr. Kominsky found 3% whole person impairment for
sensory deficits and 5% whole person impairment for motor deficits. Combining the
impairments, he found a total of 18% whole person impairment. Applying Rule 20, Dr.
Kominsky placed Ms. Billings in Category III of West Virginia Code of State Rules § 85-20-C
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By Order dated August 16, 2014, the claims administrator granted Ms. Billings a 5%
permanent partial disability award. Ms. Billings protested the claims administrator decision. On
August 25, 2015, the Office of Judges reversed the claims administrator’s Order and granted Ms.
Billings an additional 3% above the 5% permanent partial disability previously granted. The
Board of Review affirmed the Decision of the Office of Judges on March 1, 2016.
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for an adjusted final impairment rating of 13% whole person impairment. Although she was
found to have significant degenerative changes throughout her lumbar spine, Dr. Kominsky
stated she was asymptomatic prior to her injury. It was his opinion that the L3-L4 disc bulge with
subsequent nerve root impairment is the sole cause of her symptoms and loss of function. Dr.
Kominsky attributed the lower back pain with left radicular pain to the May 24, 2013, injury.
Sterling Jewelers, Inc., submitted an independent medical evaluation report from Dr.
Landis dated February 21, 2019. Dr. Landis again opined that Ms. Billings sustained nothing
more than a lumbar sprain/strain as a result of her compensable injury of May 24, 2013. Using
the AMA Guides, he found 5% whole person impairment under Table 75 and 10% whole person
impairment for range of motion abnormalities of the lumbar spine. Applying Rule 20, he placed
Ms. Billings in Lumbar Category II of West Virginia Code of State Rules § 85-20-C for a final
adjusted impairment rating of 8% whole person impairment. Because Ms. Billings had already
received an 8% permanent partial disability award in the claim, Dr. Landis concluded that she
was not entitled to any additional amount of permanent partial disability. Dr. Landis
subsequently provided a letter dated March 29, 2019, stating that his clinical findings did not
support placing Ms. Billings in a higher category than Category II of West Virginia Code of
State Rules § 85-20-C. He disagreed with Dr. Kominsky’s findings and recommendations set
forth in his report dated October 4, 2018.
On August 16, 2019, the Office of Judges entered an Order affirming the June 20, 2018,
decision of the claims administrator ruling that Ms. Billings is not entitled to an additional
permanent partial disability award in her claim. The Office of Judges found the impairment
ratings of Drs. Walker and Kominsky to be unpersuasive, as the record does not support their
decision to place Ms. Billings in Lumbar Category III of West Virginia Code of State Rules §
85-20-C. It was determined that an MRI performed on July 11, 2013, revealed no objective
evidence of nerve impingement to support Drs. Walker’s and Kominsky’s findings of lumbar
radiculopathy. The Office of Judges concluded that Ms. Billings failed to show by a
preponderance of the evidence that she is entitled to an additional award of permanent partial
disability benefits. The Board of Review issued an Order dated January 24, 2020, adopting the
findings of fact and conclusions of law of the Office of Judges and affirmed the decision.
After review, we agree with the decision of the Office of Judges, as affirmed by the
Board of Review. A preponderance of the evidence establishes that Ms. Billings has been fully
compensated for the compensable injury by her prior 8% permanent partial disability award. The
Board of Review’s Order is affirmed.
Affirmed.
ISSUED: May 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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