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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

CARLOS SANCHEZ,

Claimant Below, Petitioner

vs.) No. 23-ICA-246 (JCN: 2020022540) 

NORTH STAR PAINTING COMPANY, INC.,

Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Carlos Sanchez appeals the May 8, 2023, order of the Workers’ 

Compensation Board of Review (“Board”). Respondent North Star Painting Company, Inc. 

(“North Star”) timely filed a response.1 Petitioner did not file a reply. The issue on appeal 

is whether the Board erred in affirming the claim administrator’s order, which granted Mr. 

Sanchez a 0% permanent partial disability (“PPD”) award. 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the Board’s order is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

On April 9, 2020, Mr. Sanchez fell off of a platform and landed on his knee while 

employed as a painter and sandblaster for North Star. Mr. Sanchez underwent an open 

reduction and internal fixation of the left femur and later underwent an arthroscopy of the 

left knee with abrasion chondroplasty patella and trochlea. The record is unclear as to the 

compensable diagnoses in the claim. Mr. Sanchez participated in twenty-four physical 

therapy sessions. According to the discharge summary, dated January 18, 2021, from the 

SHP Rehabilitation and Wellness Center, Mr. Sanchez’s left knee range of motion was 

within normal limits.

When the time came to assess Mr. Sanchez’s permanent impairment resulting from 

the injury, he underwent an independent medical evaluation (“IME”) performed by S. 

Joshua Szabo, M.D., on March 11, 2021. Dr. Szabo noted that Mr. Sanchez had sustained 

a left femoral neck fracture, a left knee sprain/strain/contusion, and temporary aggravation 

1 Mr. Sanchez is represented by James T. Carey, Esq. North Star is represented by 

Steven K. Wellman, Esq., and James W. Heslep, Esq.

FILED

November 1, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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of preexisting patellar chondromalacia, all of which he considered to be functionally 

recovered. Dr. Szabo noted no range of motion deficits. Dr. Szabo placed Mr. Sanchez at 

maximum medical improvement (“MMI”) and, using the American Medical Association’s 

Guides to the Evaluation of Permanent Impairment (4th ed. 1993) (“the Guides”), found 

that Mr. Sanchez sustained 0% whole person impairment (“WPI”) related to his 

occupational injury. By order dated April 8, 2021, the claim administrator granted Mr. 

Sanchez a 0% PPD award in accordance with Dr. Szabo’s report. Mr. Sanchez protested 

the order to the Board.

Bruce Guberman, M.D., performed an IME of Mr. Sanchez on March 31, 2022. 

Upon examination, Dr. Guberman found that Mr. Sanchez had a left knee contracture, 

meaning the knee would not extend to 0 degrees. Dr. Guberman also found range of motion 

deficits in Mr. Sanchez’s left hip. Using the Guides, Dr. Guberman assessed a 4% WPI for 

the left knee contracture and a 2% WPI for the range of motion deficits in the left hip, 

which totaled a 6% WPI related to the compensable injury. 

Dr. Szabo authored a supplemental report dated January 31, 2023, in which he 

opined that “Dr. Guberman’s physical examination w[as] discrepant with the other 

examinations.” Dr. Szabo noted that both the examination from SHP Rehabilitation and 

Wellness Center and his own examination indicated no range of motion abnormalities. Dr. 

Szabo stated that Mr. Sanchez’s diagnoses would not be expected to have a delayed flexion 

contracture or asymmetry of hip motion and that he could not find an explanation for the 

discrepancies between Dr. Guberman’s examination and the documentation from himself 

and other providers. 

By order dated May 8, 2023, the Board affirmed the claim administrator’s order, 

which granted Mr. Sanchez a 0% PPD award in accordance with Dr. Szabo’s report. The 

Board concluded that Dr. Guberman’s recommendation was not reliable when considered 

with the other evidence of record. Specifically, the Board noted that neither Dr. Szabo nor 

the physical therapist from SHP Rehabilitation and Wellness Center found any range of 

motion deficits for flexion contracture of the left knee. The Board found that Dr. Guberman 

failed to provide any explanation for the variance in his range of motion measurements or 

an explanation for why the contracture was not present in 2021 but had appeared by the 

time of Dr. Guberman’s 2022 IME. Accordingly, the Board found that Dr. Szabo’s report 

was more persuasive and affirmed the claim administrator’s order granting a 0% PPD 

award. Mr. Sanchez now appeals.

Our standard of review is set forth in West Virginia Code § 23-5-12a(b) (2022), in 

part, as follows:

The Intermediate Court of Appeals may affirm the order or decision of the 

Workers’ Compensation Board of Review or remand the case for further 

proceedings. It shall reverse, vacate, or modify the order or decision of the 
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Workers’ Compensation Board of Review, if the substantial rights of the 

petitioner or petitioners have been prejudiced because the Board of Review’s 

findings are:

(1) In violation of statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the Board of Review;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative, and substantial evidence 

on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly 

unwarranted exercise of discretion.

Duff v. Kanawha Cnty. Comm’n, 247 W. Va. 550, 555, 882 S.E.2d 916, 921 (Ct. App. 

2022).

On appeal, Mr. Sanchez argues that the Board erred in affirming the 0% PPD award 

when the evidence demonstrates that he sustained greater impairment. According to Mr. 

Sanchez, the evidence demonstrates that he sustained a severe fracture requiring surgery 

and continues to have range of motion deficits. Mr. Sanchez contends that, while the Board 

found that Dr. Guberman’s report was inconsistent with the other evidence of record, the 

only other evidence is the self-serving reports of the claim administrator, North Star’s 

chosen evaluator, and a single physical therapy discharge report. As such, Mr. Sanchez 

avers that the Board clearly erred in affirming the claim administrator’s order granting him 

a 0% PPD award in accordance with Dr. Szabo’s recommendation.

Upon review, we find that Mr. Sanchez failed to demonstrate that the Board’s 

findings and conclusions were clearly wrong. As the Supreme Court of Appeals of West 

Virginia has set forth, “[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards 

of review are deferential ones which presume an agency’s actions are valid as long as the 

decision is supported by substantial evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 

196 W. Va. 442, 473 S.E.2d 483 (1996). With this high standard of review in mind, we are 

unable to conclude that the Board erred in awarding Mr. Sanchez a 0% PPD award in 

accordance with Dr. Szabo’s recommendation.

Here, the Board found that Dr. Guberman’s report was unreliable because his range 

of motion measurements were not supported by the other evidence of record. Importantly, 

Mr. Sanchez’s physical therapist discharged him from services in January of 2021 and 

noted that Mr. Sanchez had full range of motion in his left knee. Dr. Szabo also examined 

Mr. Sanchez in early 2021 and noted no range of motion deficits. Inexplicably, Dr. 

Guberman found range of motion deficits in Mr. Sanchez’s knee a year later in 2022. Dr. 

Guberman failed to explain why Mr. Sanchez sustained a delayed left knee contracture that 

was related to the compensable injury. Dr. Szabo reviewed Dr. Guberman’s report and 

found no explanation for the delayed range of motion deficits noted by Dr. Guberman. 
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We find that Mr. Sanchez fails to demonstrate that the Board was clearly wrong and, 

rather, asks this Court to reweigh the evidence in his favor. However, we find the evidence 

sufficient to support the Board’s order granting Mr. Sanchez a 0% PPD award and give 

deference to the Board’s findings. See W. Va. Off. of Ins. Comm’r v. Johns, No. 21-0811, 

2023 WL 3968686, at *3 (W. Va. Jun. 13, 2023) (memorandum decision) (“This Court 

may not reweigh the evidentiary record, but must give deference to the findings, reasoning, 

and conclusions of the Board of Review[.]”). 

Accordingly, we affirm the Board’s May 8, 2023, order. 

Affirmed.

ISSUED: November 1, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Charles O. Lorensen

Judge Thomas E. Scarr, not participating