Judy K. Quick v. Kanawha County Commission ( 2023 )

FILED
January 19, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
JUDY K. QUICK,
Claimant Below, Petitioner
vs.) No. 21-0567 (BOR Appeal No. 2056023)
(Claim No. 2017010969)
KANAWHA COUNTY COMMISSION,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Judy K. Quick, by Counsel Patrick K. Maroney, appeals the decision of the West
Virginia Workers’ Compensation Board of Review (“Board of Review”). Kanawha County
Commission, by Counsel Steven K. Wellman and James W. Heslep, filed a timely response.
The issue on appeal is the amount of permanent partial disability in the claim. The claims
administrator granted Ms. Quick an 8% permanent partial disability award on March 21, 2019. On
November 13, 2020, 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
June 22, 2021, 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 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 . . . .
(d) 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
1
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
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).
Ms. Quick sustained a compensable work injury on October 18, 2016, to her right knee,
right middle finger, left hand, left elbow, and head when she tripped and fell on a sidewalk outside
of the courthouse where she was working. In the Report of Occupational Injury dated October 18,
2016, a physician diagnosed her with contusions and possible internal derangement of the right
knee. It was opined that the conditions were a direct result of her occupational injury. The claims
administrator held the claim compensable for contusion of the right knee, right middle finger, left
hand, left elbow, and head.
On March 5, 2019, Ms. Quick was evaluated by Paul Bachwitt, M.D., to determine the
amount of permanent partial disability she sustained as the result of the work-related injury. Dr.
Bachwitt found that Ms. Quick had complaints of swelling in her right leg and a lack of strength
and movement in her hand. The physical examination revealed loss of range of motion of the right
knee, loss of range of motion of the right long finger, diminished sensation over the C6 and C8
dermatome, diffuse pain of the right knee, and medial joint line tenderness. Dr. Bachwitt found
that Ms. Quick had reached maximum medical improvement with an 8% whole person impairment
due to the compensable injury. He opined that she had no whole person impairment for the left
wrist or left middle finger, 4% whole person impairment for lack of motion of the right long finger,
and 4% whole person impairment for lack of motion of the right knee. On March 21, 2019, the
claims administrator granted Ms. Quick an 8% permanent partial disability award based upon Dr.
Bachwitt’s recommendation. Ms. Quick protested the claims administrator’s decision.
Medical records of Bruce Haupt, M.D., dated October 26, 2016, through December 19,
2016, were submitted by the Kanawha County Commission. Ms. Quick was seen for her right knee
contusion, left hand metacarpal fracture, and left hand pain. Dr. Haupt noted that she had diffuse
soft tissue tenderness along the radial border of the fifth metacarpal of the left hand, diminished
grip strength of the left hand, bony abnormality at the base of the fifth metacarpal of the left hand,
discoloration anteriorly of the right knee, trace effusion of the right knee, and tenderness along the
medial greater than lateral joint line of the right knee. Dr. Haupt eventually diagnosed Ms. Quick
with a contusion of the right lower leg and right knee. A duplex scan was discussed to rule out
deep vein thrombosis.
2
In protest of the claims administrator’s Order, Ms. Quick submitted an Independent
Medical Evaluation from Bruce A. Guberman, M.D., dated October 8, 2019. The physical
examination revealed:
[a]n antalgic gait, tenderness of the hands with mild swelling and redness, weakness
of the hands, loss of range of motion of the right middle finger, loss of range of
motion of the left little finger, moderate tenderness of the right knee, mild
crepitations of the right knee, mild swelling of the right knee, loss of range of
motion of the right knee, moderate tenderness of the left knee, moderate
crepitations of the left knee, mild swelling of the left knee, and loss of range of
motion of the left knee.
The impressions listed by Dr. Guberman was history of contusion to both knees superimposed on
pre-existing, but dormant degenerative joint disease; history of fracture of the right middle finger
and left little finger; and history of head contusions, resolved without sequelae.
Dr. Guberman opined that Ms. Quick had reached maximum medical improvement and
that no further specific treatment and/or diagnostic testing was likely to improve her impairment
resulting from the compensable injury. Dr. Guberman opined that Ms. Quick has 14% whole
person impairment due to the compensable injury. In determining the amount of impairment, Dr.
Guberman found 4% whole person impairment for lack of motion of the right knee, 4% whole
person impairment for lack of motion of the left knee, 3% whole person impairment for a lack of
motion of the left little finger, and 3% whole person impairment for lack of motion of the right
middle finger.
The final physical examination and impairment rating was conducted by Prasadarao B.
Mukkamala, M.D., on March 12, 2020. Ms. Quick presented with pain of the right knee and left
forearm, swelling of the right knee, instability of the right knee, and stated that she has a tendency
to drop things with her left hand. The physical examination revealed slight limitation of motion of
the right middle finger and left little finger, mild arthritic deformity of joints in both hands, slight
limitation of motion of the right knee, symmetrical loss of motion of the toes in both feet, and
some giveaway weakness of the right and left knees. The diagnoses were contusion of the right
knee, injury to both hands with a fractured fifth metacarpal in the left hand, contusion to the left
elbow, and contusion to the head. Dr. Mukkamala noted that there was no notation in any medical
records that Ms. Quick had injured her left knee during the incident of October 18, 2016. Although
Ms. Quick stated that she fell on both knees, Dr. Mukkamala reported that there was no objective
evidence that she sustained an injury to her left knee. The examination of the left knee was
“completely normal.” It was opined that she had reached her maximum medical improvement with
6% whole person impairment due to the compensable injury. Specifically, Dr. Mukkamala found
4% whole person impairment for the lack of motion of the right knee, 1% whole person impairment
for lack of motion of the right finger, and 1% for lack of motion of the left fifth metacarpal. Dr.
Mukkamala did not find impairment for Ms. Quick’s left knee or the toes of the right foot.
In a Final Decision dated November 13, 2020, the Office of Judges affirmed the claims
administrator’s Order of March 21, 2019, granting Ms. Quick an 8% permanent partial disability
3
award. It was concluded that Ms. Quick has not established by a preponderance of the evidence
that she sustained a greater whole person impairment than the 8% permanent partial disability
recommended by Dr. Bachwitt. The Office of Judges noted that in determining his impairment
rating, Dr. Guberman recommended 4% whole person impairment for the left knee based upon a
finding of 95 degrees of flexion. Dr. Bachwitt reported Ms. Quick had 115 degrees of flexion,
while Dr. Mukkamala reported that flexion was 120 degrees, both of which correspond to no
impairment. The Office of Judges discredited Dr. Guberman’s report for including a non-
compensable body part, the left knee, in his impairment rating, and his report was found to be
unreliable. The Office of Judges concluded that the claims administrator did not err in granting
Ms. Quick an 8% permanent partial disability award. The Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and affirmed its Order on June 22, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The preponderance of the evidence indicates that Ms. Quick has
not sustained a greater amount of whole person impairment than the 8% granted by the claims
administrator. Although Ms. Quick seeks an additional award based upon Dr. Guberman’s report,
the Office of Judges found the report to be unreliable because Dr. Guberman’s impairment rating
included a rating for a non-compensable condition and was properly discredited. Therefore, the
decision of the Board of Review is affirmed.
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