STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

December 11, 2013 

RORY L. PERRY II, CLERK 

STEVEN D. PETERS, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 12-0516	 (BOR Appeal No. 2046480) 

(Claim No. 2007216459) 

ALCAN ROLLED PRODUCTS – RAVENSWOOD, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Steven D. Peters, by Edwin H. Pancake, his attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Alcan Rolled Products – 

Ravenswood, LLC, by H. Toney Stroud, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated March 26, 2012, in 

which the Board affirmed a September 16, 2011, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s July 6, 2010, 

decision granting the claimant a 0% 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. Peters worked for Alcan Rolled Products as a machinist. On January 14, 2007, a 

mold fell on his left foot. Mr. Peters was diagnosed with a fracture of the third metatarsal in his 

left foot and his claim was held compensable for that diagnosis. Mr. Peters received treatment 

based on this claim and his condition improved to the point where he was released by the Holzer 

Clinic to return to his regular work activities on May 22, 2007. Mr. Peters was then evaluated by 

Dr. Bachwitt who found that the fracture to the third metatarsal had healed solidly in good 

position and alignment. Dr. Bachwitt further found that Mr. Peters had reached the maximum 

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degree of medical improvement. Using the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment (4th ed. 1993), Dr. Bachwitt found that Mr. Peters’s ankle, 

foot, and toe motions were all normal. Following a Weil osteotomy of the fourth metatarsal in 

the left foot, Dr. Bachwitt again evaluated Mr. Peters’s impairment. Dr. Bachwitt found that Mr. 

Peters’s range of motion was within normal limits. Dr. Bachwitt found that Mr. Peters had no 

impairment related to the fracture of the third metatarsal in his left foot. On July 6, 2010, the 

claims administrator granted Mr. Peters no permanent partial disability award for his 

compensable injury. Mr. Peters was then evaluated by Dr. Guberman who found that Mr. Peters 

continued to have pain in the middle of his left foot. Dr. Guberman found that Mr. Peters had 

persistent range of motion abnormalities. He found that Mr. Peters had 5% whole person 

impairment related to his compensable injury. On September 16, 2011, the Office of Judges 

affirmed the claims administrator’s decision. The Board of Review then affirmed the Order of 

the Office of Judges on March 26, 2012, leading Mr. Peters to appeal. 

The Office of Judges found that Mr. Peters had no impairment relating to his January 14, 

2007, injury and affirmed the claims administrator’s decision granting of no permanent partial 

disability award. In making its determination, the Office of Judges relied on the impairment 

evaluation of Dr. Bachwitt, who found that the original injury to the third metatarsal in the left 

foot had completely healed. The Office of Judges also noted that the x-rays reviewed by Dr. 

Bachwitt showed good alignment of the bone in the third metatarsal of the left foot. Dr. Bachwitt 

also reported that Mr. Peters had normal range of motion in his left ankle, foot, and toe. The 

Office of Judges found that the report of Dr. Guberman, who found that Mr. Peters had 5% 

impairment, was not consistent with the record as a whole. The Office of Judges also pointed out 

that Dr. Guberman only found impairment in the fourth metatarsal of Mr. Peters’s left foot. 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. The Office of Judges based its permanent partial disability award on the most reliable 

and persuasive impairment evaluation in the record. Dr. Bachwitt made his impairment 

assessment based on a proper application of the American Medical Association’s Guides and his 

assessment was consistent with the record as a whole. The impairment rating provided by Dr. 

Guberman, by comparison, was not consistent with the other evidence in the record. Dr. 

Guberman based his impairment rating, at least partly, on problems relating to Mr. Peters’s 

fourth metatarsal in his left foot, which is not a compensable component of the claim. The Office 

of Judges was within its discretion in relying on Dr. Bachwitt’s impairment rating instead of Dr. 

Guberman’s. 

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. 

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ISSUED: December 11, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin J. Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISSENTING: 

Justice Menis E. Ketchum 

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