Wesbanco Bank v. Rebecca A. Martin ( 2013 )


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  •                               STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    FILED
    WESBANCO BANK, INC.,                                                            December 17, 2013
    RORY L. PERRY II, CLERK
    Employer Below, Petitioner                                                 SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    vs.)   No. 12-0588 (BOR Appeal No. 2046539)
    (Claim No. 2000035111)
    REBECCA A. MARTIN,
    Claimant Below, Respondent
    MEMORANDUM DECISION
    Petitioner WesBanco Bank, Inc., by Edward M. George III, its attorney, appeals the
    decision of the West Virginia Workers’ Compensation Board of Review. Rebecca A. Martin, by
    Sue Anne Howard, her attorney, filed a timely response.
    This appeal arises from the Board of Review’s Final Order dated April 24, 2012, in
    which the Board affirmed an October 21, 2011, Order of the Workers’ Compensation Office of
    Judges. In its Order, the Office of Judges reversed the claims administrator’s December 8, 2010,
    decision denying Ms. Martin’s application for permanent total disability benefits. The Court has
    carefully reviewed the records, written arguments, and appendices contained in the briefs, and
    the case is mature for consideration.
    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.
    Ms. Martin worked as a loan officer for WesBanco Bank, Inc. On October 25, 1999, she
    sustained an occupational left shoulder injury as a result of a fall. The compensable diagnoses are
    shoulder sprain, cervical sprain, thoracic sprain, cerebrovascular accident, and depression. She
    underwent surgery in June of 2000 for repair of her shoulder and rotator cuff, and was
    hospitalized two days later after a cerebrovascular stroke. On June 8, 2009, Dr. Dauphin
    concluded that Ms. Martin had a 38% impairment for the physical aspects of her injury. Dr. Hill
    concluded that Ms. Martin had a 14% whole person psychiatric impairment rating on June 20,
    2009. Dr. Guberman concluded that Ms. Martin had a 44% whole person impairment before
    1
    including any impairment rating for the psychiatric aspect. The claims administrator denied Ms.
    Martin’s application for permanent total disability benefits.
    The Office of Judges reversed the claims administrator’s decision and held that Ms.
    Martin has met the statutory threshold of showing 50% or more in permanent partial disability
    awards on a medical basis and is entitled to have her permanent total disability claim considered
    on the merits. WesBanco Bank, Inc. disagrees and asserts that the issue of permanent total
    disability benefits has been fully litigated previously and is barred by the legal principles of res
    judicata and collateral estoppels.
    The Office of Judges concluded that Ms. Martin is entitled to have her permanent total
    disability claim considered on the merits. The Office of Judges determined that Ms. Martin has
    previously been found to have a 14% permanent partial disability on a psychiatric basis by Dr.
    Hill, and that no evidence was presented to negate this finding. Dr. Guberman concluded Ms.
    Martin has a 44% permanent partial disability in addition to the psychiatric impairment in this
    claim. The Office of Judges concluded that Dr. Guberman’s and Dr. Dauphin’s reports are of
    equal evidentiary weight, and relied on Dr. Guberman’s conclusion that Ms. Martin will meet or
    exceed the 50% in medical impairment when the psychiatric aspect of the compensable disability
    is considered. The Office of Judges held that Ms. Martin has met the statutory threshold for
    medical impairment by showing at least 50% impairment on the whole body basis as required by
    West Virginia Code §23-4-6(n)(1) (2005) and is entitled to have her permanent total disability
    claim considered on the merits. The Board of Review reached the same reasoned conclusions in
    its decision of April 24, 2012. We agree with the reasoning and conclusions of the Board of
    Review.
    For the foregoing reasons, we find that the decision of the Board of Review is not in clear
    violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
    conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
    evidentiary record. Therefore, the decision of the Board of Review is affirmed.
    Affirmed.
    ISSUED: December 17, 2013
    CONCURRED IN BY:
    Chief Justice Brent D. Benjamin
    Justice Robin J. Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Allen H. Loughry II
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Document Info

Docket Number: 12-0588

Filed Date: 12/17/2013

Precedential Status: Precedential

Modified Date: 10/30/2014