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# 25 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

MERRILL HUNT, Claimant Below, Petitioner

vs.) No. 13-0318 (BOR Appeal No. 2047530) (Claim No. 2009079382)

SWVA, INC., Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Merrill Hunt, by Edwin H. Pancake, his attorney, appeals the decision of the West Virginia Workers’ Compensation Board of Review. SWVA, Inc., by Steven K. Wellman, its attorney, filed a timely response.

This appeal arises from the Board of Revi ew’s Final Order date d February 27, 2013, in which the Board affirmed a July 25, 2012, Order of the Workers’ Compensation Office of Judges. In its Order, the Office of Judges affi rmed the claims administrator’s September 14, 2010, decision awarding 0% permanent partial disa bility. The Court has car efully reviewed the records, written arguments, and appendices contai ned 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Mr. Hunt worked for SWVA, Inc., doing various jobs over the last thir ty years. Mr. Hunt

claims that as a result of work ing at SWVA, Inc., he developed carpal tunnel syndrome in his left hand. Marsha Lee Bailey, M.D., was of the opin ion that Mr. Hunt had reached the maximum degree of medical improvement and had 0% whol e person impairment due to his employment with SWVA, Inc. Accordingly, the claims administ rator granted 0% perman ent partial disability. Mr. Hunt protested his 0% award. On appeal, Mr. Hunt seeks a 6% permanent partial disability award based upon the report of Bruce Guberman, M.D. FILED

October 3, 2014
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The Office of Judges affirmed the claims admi nistrator’s decision th at Mr. Hunt was not entitled to any permanent partial disability. Th e Office of Judges, in reaching its conclusion, found the report of Jerry W. Scott, M.D., to be more credible a nd reliable than e ither the reports of Dr. Bailey or Dr. Guberman. The Office of Judges determined Dr. Guberman’s report was

flawed because it did not consider that Mr. H unt was no longer working for SWVA, Inc., when his symptoms returned. Moreover, Dr. Guberman ’s report did not cons ider the alternative personal activities that could have caused Mr . Hunt’s condition. The Office of Judges found Dr. Bailey’s report to be less credible than Dr . Scott’s report because her report was not representative of Mr. Hunt’s medical condition at his maximum degree of medical improvement. The Office of Judges concluded Dr. Bailey examined Mr. Hunt while he was still experiencing minimal symptoms after his surgery. However, Dr . Scott had the benefit of examining Mr. Hunt while he was not experiencing symptoms after surgery. Accordingly, the Office of Judges relied on Dr. Scott’s report, which recommended 0% perman ent partial disability relating to Mr. Hunt’s employment with SWVA, Inc. The Board of Revi ew adopted the Office of Judge’s findings and

affirmed its Order.

We agree with the conclusion of the Board of Review and the findings of the Office of Judges. The evidence shows that Mr. Hunt quit working at SWVA, Inc., on May 29, 2009. Thereafter, Mr. Hunt had successful surgery in June of 2009, and was symptom free for some

time. The evidence shows that Mr . Hunt redeveloped the sympto ms of left carpal tunnel syndrome after his departure from SWVA, Inc. Si nce Dr. Scott’s report takes into consideration Mr. Hunt’s employment as a school bus driver, his personal activities, and his activities at SWVA, Inc., it is the most reliabl e and complete report.

For the foregoing reasons, we find that the deci sion 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 materi al misstatement or mischaracterization of the evidentiary record. Therefore, the decision of the Board of Review is affirmed.

Affirmed.



### ISSUED: October 3, 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