Tri-State Coating & Machine Co., Inc. v. Colt M. Tomblin ( 2023 )

FILED
January 19, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
TRI-STATE COATING & MACHINE CO., INC.,
Employer Below, Petitioner
vs.) No. 21-0218 (BOR Appeal No. 2055971)
(Claim No. 2017021397)
COLT M. TOMBLIN,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner Tri-State Coating & Machine Co., Inc., by Counsel Lisa Warner Hunter, appeals
the decision of the West Virginia Workers’ Compensation Board of Review (“Board of Review”).
Colt M. Tomblin, by Counsel Jerry D. Alford, filed a timely response.
The issue on appeal is permanent partial disability. The claims administrator granted an
11% permanent partial disability award on June 12, 2019. The Workers’ Compensation Office of
Judges (“Office of Judges”) reversed the decision in its November 10, 2020, Order and granted a
19% permanent partial disability award. The Order was affirmed by the Board of Review on
February 19, 2021.
The Court has carefully reviewed the records, written arguments, and appendices contained
in the briefs, and the case is mature for consideration. 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 West Virginia Code § 23-5-15, in relevant part, as follows:
(c) 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 . . . .
1
(e) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or 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 provisions, is clearly the result of erroneous conclusions
of law, or is so clearly wrong based upon the evidentiary record that even when all
inferences are resolved in favor of the board’s findings, reasoning, and conclusions,
there is insufficient support to sustain the decision. The court may not conduct a de
novo reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia 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. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Mr. Tomblin, a shop worker, burned his right hand on a machine on February 14, 2017.
On February 27, 2017, the claim was held compensable for right hand third degree burn. Mr.
Tomblin underwent several evaluations to determine the amount of permanent impairment he
sustained as a result of the compensable injury.
On May 7, 2019, David Soulsby, M.D., performed an Independent Medical Evaluation in
which he noted that Mr. Tomblin suffered a third degree burn which required debridement and a
skin graft. Mr. Tomblin’s burn was 1% of the total body surface area. The skin graft took well,
and Mr. Tomblin returned to full duty work on May 23, 2017. Mr. Tomblin reported to Dr. Soulsby
that he still had numbness in his hand and fingers as well as diminished strength. Dr. Soulsby
diagnosed healed burn injury and opined that Mr. Tomblin had reached maximum medical
improvement. He also noted that Mr. Tomblin had some signs of carpal tunnel syndrome, which
was not the result of the compensable injury. He assessed 17% upper extremity impairment, which
converted to 10% whole person impairment for range of motion loss and 1% for impairment under
Table 3 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment
(4th ed. 1993) for a total of 11% whole person impairment. Based on Dr. Soulsby’s report, the
claims administrator granted an 11% permanent partial disability award on June 12, 2019.
In a July 29, 2019, Independent Medical Evaluation, Bruce Guberman, M.D., found that
Mr. Tomblin had reached maximum medical improvement. He assessed 26% upper extremity
impairment for range of motion loss, which converted to 16% whole person impairment. Dr.
Guberman also assessed 2% impairment for Mr. Tomblin’s scar, which still required treatment
with lotion. Dr. Guberman’s total impairment assessment was 18%. He therefore recommended
Mr. Tomblin receive an additional 7% award.
In an October 17, 2019, addendum to his Independent Medical Evaluation, Dr. Soulsby
stated that he reviewed Dr. Guberman’s report. Dr. Soulsby opined that Dr. Guberman failed to
determine the cause of the numbness on the volar aspect of Mr. Tomblin’s hand. Dr. Guberman
also failed to note signs of carpal tunnel syndrome. Dr. Soulsby opined that Dr. Guberman included
2
ratings for sensory loss in all five fingers, which Dr. Soulsby did not. Dr. Soulsby disagreed with
Dr. Guberman’s assessment of impairment for Mr. Tomblin’s scar. He stated that the skin graft
and scars were well-healed. Dr. Soulsby stated that the contractures in the soft tissue due to the
scarring were accounted for in the range of motion assessment.
Prasadarao Mukkamala, M.D., performed an Independent Medical Evaluation on
December 12, 2019, in which he noted that Mr. Tomblin’s scar was not overly sensitive. It was
not adhered to any underlying structures and could easily be moved around without discomfort.
Dr. Mukkamala noted that Mr. Tomblin reported loss of sensation in his scar. After examination,
Dr. Mukkamala assessed 5% impairment for range of motion loss and 1% impairment for Mr.
Tomblin’s scar under Table 2 of the AMA Guides, for a total of 6% whole person impairment. Dr.
Mukkamala noted that Mr. Tomblin reported numbness outside of the range of his scar, which
rendered the sensory impairment unreliable and was indicative of symptom magnification. Dr.
Mukkamala disagreed with Dr. Soulsby’s findings and concluded that Mr. Tomblin did not put
forth maximum effort during Dr. Soulsby’s testing. Dr. Mukkamala also disagreed with Dr.
Guberman’s findings and opined that they were unreliable for both range of motion and sensory
findings.
Paul Bachwitt, M.D., performed an Independent Medical Evaluation on May 11, 2020, in
which he noted that Mr. Tomblin reported loss of motion, strength, and sensation in right index,
middle, right, and little fingers. After examination, Dr. Bachwitt assessed 18% whole person
impairment for range of motion loss and 1% impairment for scarring for a total of 19% whole
person impairment. Dr. Bachwitt noted that Mr. Tomblin had preexisting carpal tunnel syndrome.
He also noted that he saw no signs of symptom magnification.
In a May 11, 2020, letter, Dr. Guberman stated that he reviewed Dr. Soulsby’s addendum
and Dr. Mukkamala’s Independent Medical Evaluation. Regarding Dr. Soulsby’s finding of carpal
tunnel syndrome, Dr. Guberman stated that there is no indication in the medical records of
preexisting carpal tunnel syndrome. He also found no indication that Mr. Tomblin had numbness
in his right hand or fingers prior to the compensable injury. Dr. Guberman opined that to a
reasonable degree of medical probability, Mr. Tomblin’s right hand sensory loss is the result of
his compensable burn injury and not carpal tunnel syndrome. Dr. Guberman stated that the
difference in his range of motion measurements and Dr. Soulsby’s mean Mr. Tomblin had not
reached maximum medical improvement at the time of Dr. Soulsby’s evaluation, or Mr. Tomblin
gave better effort at his own evaluation. Dr. Guberman defended his assessment of 2% impairment
for the scar by stating that the scar burns easily in the sun, was tender to the touch, and was sensitive
to temperature. Regarding Dr. Mukkamala’s report, Dr. Guberman disagreed with the finding of
symptom magnification regarding Mr. Tomblin’s reported numbness. Dr. Guberman opined that
his own sensory evaluation results were valid and physiologically consistent. Dr. Guberman
disagreed with Dr. Mukkamala’s range of motion findings and opined that his own findings were
more accurate.
In its November 10, 2020, Order, the Office of Judges reversed the claims administrator’s
grant of an 11% permanent partial disability award and instead granted a 19% award. It found that
of the four evaluators of record, Dr. Mukkamala was the only physician to find evidence of
3
symptom magnification and was the only physician to find less than 11% impairment. The Office
of Judges found the opinion to be unsupported by the evidentiary record. The Office of Judges
found that Dr. Bachwitt is an orthopedic surgeon and recommended 19% impairment. Dr. Bachwitt
did not calculate any impairment for Mr. Tomblin’s alleged carpal tunnel syndrome. Further, the
Office of Judges found his evaluation to be supported by that of Dr. Guberman, who found similar
impairment attributable to the compensable injury. The Office of Judges noted that Mr. Tomblin
is only in his mid-20s and works as a physical laborer. He sustained a severe burn injury to his
dominant hand and can no longer use that had as efficiently as before the injury. The Office of
Judges concluded that as an orthopedic surgeon, Dr. Bachwitt is well qualified to assess Mr.
Tomblin’s total impairment. The Board of Review adopted the findings of fact and conclusions of
law of the Office of Judges and affirmed its Order on February 19, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. Of the four evaluations of record, Dr. Mukkamala’s is clearly
an outlier in terms of the amount of impairment and findings of symptoms magnification. The
three remaining reports are all reliable. The Office of Judges relied on Dr. Bachwitt’s conclusion
because he is highly qualified to determine Mr. Tomblin’s impairment and his opinion is supported
by the evidentiary record. The Board of Review committed no error in affirming the Office of
Judges’ Order.
Affirmed.
ISSUED: January 19, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4