Jay E. Clegg v. Ohio Power

STATE OF WEST VIRGINIA
FILED
SUPREME COURT OF APPEALS November 7, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
JAY E. CLEGG, OF WEST VIRGINIA
Claimant Below, Petitioner
vs.) No. 12-0218 (BOR Appeal No. 2046292)
(Claim No. 2009082115)
OHIO POWER COMPANY,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Jay E. Clegg, by Robert M. Williams, his attorney, appeals the decision of the
West Virginia Workers’ Compensation Board of Review. Ohio Power Company, by Henry
Bowen, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated January 23, 2012, in
which the Board affirmed a July 29, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges reversed the claims administrator’s July 8, 2010,
decision granting a 0% permanent partial disability award. The Office of Judges granted Mr.
Clegg a 5% 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. Clegg worked as an instrument control technician for Ohio Power Company for over
thirty years. His occupation required him to occasionally use an electrical impact wrench and to
open and close valves on gas tanks. But his work was primarily clerical in nature. Beginning in
2008, Mr. Clegg started having numbness and pain in his hands which gradually worsened. Mr.
Clegg was diagnosed with moderately severe bilateral carpal tunnel syndrome. Mr. Clegg
underwent carpal tunnel release surgery in December of 2008, in February of 2009, and in
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February of 2010. On February 18, 2009, Mr. Clegg submitted a request for workers’
compensation benefits and his claim was held compensable on March 30, 2009, for carpal tunnel
syndrome. Following this decision, Dr. de Garmeaux found that Mr. Clegg had reached the
maximum degree of medical improvement for his carpal tunnel syndrome and found 13% whole
person impairment. Mr. Clegg was then evaluated by Dr. Kann who also found that he had
reached the maximum degree of medical improvement. But Dr. Kann found that Mr. Clegg had
no impairment relating to his carpal tunnel syndrome. On July 8, 2010, the claims administrator
granted Mr. Clegg 0% permanent partial disability based on Dr. Kann’s recommendation.
Following this decision, Mr. Clegg was evaluated by Dr. Jin who found 5% whole person
impairment based on the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (4th ed. 1993). On July 29, 2011, the Office of Judges reversed the
claims administrator’s July 8, 2010, decision and granted Mr. Clegg a 5% permanent partial
disability award. The Board of Review then affirmed the Order of the Office of Judges on
January 23, 2012, leading Mr. Clegg to appeal.
The Office of Judges concluded that Mr. Clegg was entitled to a 5% permanent partial
disability award relating to his carpal tunnel syndrome. In reaching this conclusion, the Office of
Judges relied on the opinion of Dr. Jin. The Office of Judges found Dr. Jin’s report to be the
most persuasive evidence in the record because Dr. Jin applied the American Medical
Association’s Guides and provided an explanation of how she determined Mr. Clegg’s whole
person impairment. The Office of Judges considered the findings of Dr. de Garmeaux. But the
Office of Judges found that Dr. de Garmeaux did not give a full explanation of his opinion in
accordance with West Virginia Code of State Rules § 85-20-66 (2006). The Office of Judges
found that he did not explain how he arrived at his rating and he did not make reference to the
American Medical Association’s Guides. The Office of Judges also considered the opinion of
Dr. Kann but it found that Dr. Kann’s report was the least persuasive of the reports in the record.
The Office of Judges found it unpersuasive that Mr. Clegg would have no permanent impairment
even though he had three surgeries related to this claim and continued to exhibit objectively
verifiable problems. The Board of Review adopted the findings of the Office of Judges and
affirmed its Order.
We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Dr. Jin properly relied on the American Medical Association’s Guides and adequately
explained how she arrived at her determination of Mr. Clegg’s whole person impairment. Her
recommendation is the most persuasive evidence in the record and the Office of Judges was
justified in relying on her report. Mr. Clegg is entitled to a 5% permanent partial disability award
relating to this claim.
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.
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Affirmed.
ISSUED: November 7, 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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