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STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

GLENN COLBY, 

Claimant Below, Petitioner 

vs.) No. 12-0909 (BOR Appeal No. 2046817) 

 (Claim No. 2006209850) 

 

BAYER CORPORATION, 

Employer Below, Respondent 

MEMORANDUM DECISION

 

 Petitioner Glenn Colby, by Patrick Maroney, his attorney, appeals the decision of the 

West Virginia Workers’ Compensation Board of Review. Bayer Corporation, by Timothy 

Huffman, its attorney, filed a timely response.

This appeal arises from the Board of Review’s Final Order dated July 11, 2012, in which 

the Board affirmed a January 6, 2012, Order of the Workers’ Compensation Office of Judges. In 

its Order, the Office of Judges reversed the claims administrator’s September 14, 2009, decision 

which granted Mr. Colby no 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. Colby, a fire control inspector, was exposed to carbon monoxide in the course of his 

employment. He was diagnosed with carbon monoxide poisoning by David Penney, Ph.D. By an 

Order from this Court dated January 5, 2011, his claim was held compensable for carbon 

monoxide exposure. Mr. Colby alleges that he sustained a number of medical conditions due to 

his compensable injury including tremors, disequilibrium, sensory loss, and cognitive defects. 

FILED

March 10, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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Mr. Colby underwent an independent medical evaluation by Howard Sandler, M.D., in 

September of 2007. In that evaluation, Dr. Sandler found that most of Mr. Colby’s symptoms 

were pre-existing and were not consistent with carbon monoxide exposure. He determined that 

Mr. Colby had a history of psychological problems including anxiety, depression, and increased 

emotional responses going back as early as 1987. He found that Dr. Penney’s diagnosis was 

unreliable, because he is not a physician and failed to perform a physical examination of Mr. 

Colby. 

 Based upon a recommendation by Dr. Penney, Mr. Colby was evaluated by Dennis 

Helffenstein, M.D., a neuropsychologist, on September 19, 2008. Dr. Helffenstein diagnosed Mr. 

Colby with a cognitive disorder and a mood disorder caused by carbon monoxide poisoning. He 

determined that Mr. Colby had ongoing symptoms including permanent physical fatigue, as well 

as visual, cognitive, and emotional coping defects. He was of the opinion that the symptoms did 

not precede the carbon monoxide exposure. He noted that he was unaware of any pre-existing or 

co-existing medical, neurological, psychological, or psychiatric conditions that could account for 

Mr. Colby’s symptoms. He determined that the cognitive deficits were permanent, and that Mr. 

Colby had reached maximum medical improvement. Bruce Guberman, M.D., agreed that Mr. 

Colby was at maximum medical improvement in the independent medical evaluation he 

conducted on November 25, 2009. In that evaluation, Dr. Guberman diagnosed Mr. Colby with 

chronic carbon monoxide poisoning with neurological defects. Using the American Medical 

Association’s Guides to the Evaluation of Permanent Impairment, (4th Edition, 1993), he 

determined Mr. Colby had 10% impairment due to his cognitive defects. He assessed his 

impairment for tremors at 10%. He also recommended 5% impairment for disequilibrium and 

2% impairment for sensory loss. These impairments were combined for a total recommendation 

of 25% whole person impairment. 

 Mohammed Ranavaya, M.D., performed an independent medical evaluation of Mr. Colby 

on August 29, 2011. He reviewed Mr. Colby’s medical records and found that he had suffered 

from tremors and jerking movements of the head and jerking and weakness of the left arm since 

the mid-1990s. Dr. Ranavaya noted that Mr. Colby was diagnosed with memory problems and 

fatigue in 2004. His examination revealed no evidence of cognitive defects. He discovered that 

Mr. Colby’s hand tremors disappeared with distraction, and that there was no evidence of motor 

or sensory loss. Mr. Colby’s symptoms were noted to be subjective and self-reported. Dr. 

Ranavaya found that Mr. Colby had sustained no permanent impairment as a result of carbon 

monoxide exposure. Dr. Guberman’s findings were determined to be incorrect and unreliable. 

Mr. Colby’s medical records were reviewed by Christopher Martin, M.D. In a report 

dated September 28, 2011, he opined that Mr. Colby had sustained no permanent impairment 

from his exposure to carbon monoxide. He discovered that Mr. Colby’s tremors pre-dated his 

occupational exposure. Dr. Martin stated that he fully agreed with Dr. Ranavaya’s conclusion 

that there is no assessable impairment in this case, because there is no objective evidence to 

support a diagnosis of carbon monoxide poisoning, there was no treatment provided directly for 

the condition, and Mr. Colby’s overall level of function appears to be exceptionally high. 
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The claims administrator denied Mr. Colby a permanent partial disability award on 

September 14, 2009. The Office of Judges reversed that decision in its January 6, 2012, Order 

and awarded Mr. Colby a 10% permanent partial disability award for cognitive defects. 

Significant weight was placed on the findings of Dr. Helffenstein and the evaluation by Dr. 

Guberman. The Office of Judges determined that Dr. Helffenstein’s opinion merited more 

evidentiary weight than the opinions of Dr. Martin and Dr. Ranavaya. Because Dr. Helffenstein 

is a neuropsychologist, he was found to be in a better position to determine whether Mr. Colby 

suffered from cognitive impairment due to his carbon monoxide exposure. Dr. Helffenstein 

ultimately concluded that Mr. Colby developed cognitive impairment as the result of carbon 

monoxide poisoning. Since Dr. Guberman was the only physician of record to providing a rating 

for cognitive impairment, his recommendation was given the most evidentiary weight. The 

Office of Judges therefore concluded that the preponderance of the evidence established that Mr. 

Colby suffered 10% cognitive impairment due to his compensable condition. 

Dr. Guberman’s ratings of 10% impairment for tremors, 5% impairment for 

disequilibrium, and 2% impairment for sensory loss were determined to be less reliable than the 

opinions of Dr. Ranavaya and Dr. Martin that Mr. Colby had sustained no permanent impairment 

as the result of these conditions. The Office of Judges found that both Dr. Ranavaya and Dr. 

Martin reviewed Mr. Colby’s medical history and determined that his tremors pre-existed his 

carbon monoxide exposure. Both physicians also concluded that he showed no indications of 

equilibrium problems or sensory loss. Since the evaluations of Dr. Ranavaya and Dr. Martin 

were conducted later in time, the Office of Judges determined that more evidentiary weight 

should be placed on their findings and conclusions, because they were the most current 

assessments of Mr. Colby’s conditions. It therefore ultimately concluded that Mr. Colby was 

entitled to no permanent partial disability award for tremors, disequilibrium, or sensory loss. 

The Board of Review adopted the findings of fact and conclusions of law of the Office of 

Judges and affirmed its Order in its July 11, 2012, decision. This Court agrees with the reasoning 

and conclusions of the Board of Review. Mr. Colby is entitled to no permanent partial disability 

award for tremors, disequilibrium, or sensory loss because the conditions were pre-existing. The 

evidence does indicate, however, that he is entitled to a 10% permanent partial disability award 

due to cognitive defects caused by carbon monoxide poisoning. 

 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 

ISSUED: March 10, 2014 
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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