Jonathan Schreyer v. City of Wheeling ( 2014 )

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS June 10, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
JONATHAN SCHREYER, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 13-0049 (BOR Appeal No. 2047411)
(Claim No. 2004026436)
CITY OF WHEELING,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Jonathan Schreyer, by M. Jane Glauser, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The City of Wheeling, by Denise
D. Pentino and Aimee M. Stern, its attorneys, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated December 18, 2012, in
which the Board affirmed a June 19, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s January 20, 2011,
decision granting Mr. Schreyer no additional permanent partial disability award. 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.
Mr. Schreyer worked as a laborer for the City of Wheeling. On December 2, 2003, he
injured his neck and lower back in a work-related motor vehicle accident. The claims
administrator held the claim compensable for several lower back and neck conditions but
specifically excluded spondylosis as a compensable condition. Joseph E. Grady II, M.D., then
evaluated Mr. Schreyer and determined that he had no whole person impairment for his cervical
spine under the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993) and Cervical Category I of West Virginia Code of State Rules § 85­
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20-E (2006). He also found that Mr. Schreyer had 8% whole person impairment for his lumbar
spine under the American Medical Association’s Guides and Lumbar Category II of West
Virginia Code of State Rules § 85-20-C (2006). On April 16, 2008, the claims administrator
granted Mr. Schreyer an 8% permanent partial disability award based on Dr. Grady’s
recommendation and closed the claim. Mr. Schreyer then applied for an additional permanent
partial disability award. His application was evaluated by Charles Werntz III, D.O., who found
that Mr. Schreyer had 0% impairment for his cervical spine and 7% whole person impairment for
his lumbar spine. On January 20, 2011, the claims administrator granted Mr. Schreyer no
additional permanent partial disability award. Bruce A. Guberman, M.D., also evaluated Mr.
Schreyer. Dr. Guberman found that Mr. Schreyer had degenerative changes in his lumbar spine,
which Dr. Guberman attributed to his compensable injury. He determined that Mr. Schreyer had
not reached his maximum degree of medical improvement. Dr. Guberman, nevertheless,
determined that Mr. Schreyer’s lumbar disabilities fit within Lumbar Category III of West
Virginia Code of State Rules § 85-20-C and noted that the 10-13% impairment range provided
for that category was greater than Mr. Schreyer’s prior award. On June 19, 2012, the Office of
Judges affirmed the claims administrator’s January 20, 2011, decision. The Board of Review
affirmed the Order of the Office of Judges on December 18, 2012, leading Mr. Schreyer to
appeal.
The Office of Judges concluded that Mr. Schreyer was not entitled to a greater permanent
partial disability award than the 8% previously granted. The Office of Judges found that he had
been fully compensated for his injuries related to the December 2, 2003, claim. In reaching this
conclusion, the Office of Judges considered the independent medical evaluation of Dr.
Guberman, but it found that Dr. Guberman was not consistent in determining that Mr. Schreyer
had reached his maximum degree of medical improvement prior to evaluating his permanent
impairment. The Office of Judges also found that Dr. Guberman’s recommendation included
impairment percentages for non-compensable degenerative conditions. The Board of Review
adopted the findings of the Office of Judges and affirmed its Order.
On appeal, Mr. Schreyer requests a 13% permanent partial disability award for his
lumbar spine and a 6% award for his cervical spine. In the alternative, Mr. Schreyer requests that
the case be remanded for an additional independent medical evaluation.
We agree with the conclusion of the Board of Review and the findings of the Office of
Judges. Mr. Schreyer has not demonstrated that he is entitled to any additional permanent partial
disability award related to his compensable injury. Mr. Schreyer was previously granted an 8%
permanent partial disability award. The evidence in the record shows that this award fully
compensated him for his injury. Dr. Guberman’s impairment evaluation is not sufficiently
consistent and reliable to justify granting Mr. Schreyer an additional award. The remainder of the
record shows that Mr. Schreyer is not entitled to any additional permanent partial disability
award.
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
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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: June 10, 2014
CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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