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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

THOMAS HEALTH SYSTEM, INC., 

Employer Below, Petitioner 

vs.) No. 23-ICA-384 (JCN: 2021007381) 

 

RACHAEL THOMAS, 

Claimant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Thomas Health System, Inc., (“THS”) appeals the July 31, 2023, order of 

the Workers’ Compensation Board of Review (“Board”). Respondent Rachael Thomas

filed a response.1

 THS did not file a reply. The issue on appeal is whether the Board erred 

in reversing the claim administrator’s order, which granted Ms. Thomas a 17% permanent 

partial disability (“PPD”) award, and instead granting her a 25% 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. 

Ms. Thomas injured her left upper arm on October 7, 2020, when she was changing, 

cleaning, and pulling a patient up in their bed. Ms. Thomas went to the Emergency 

Department at Thomas Memorial Hospital the next day and reported an occupational 

injury. She indicated that she felt a pulling sensation in her left trapezius and then later 

developed paresthesia, or numbness, in her fingers and left upper arm. She was diagnosed 

with strain of the left trapezius, and paresthesia of the left upper extremity from 

compression of the cervical plexus. 

On October 9, 2020, Ms. Thomas was seen by Bruce Haupt, M.D. She reported that 

since the injury she had experienced persistent numbness and swelling in her left arm. On 

October 26, 2020, Ms. Thomas returned to see Dr. Haupt and reported significant continued 

pain that originated in the left lower side of her neck and radiated down into her fingers, 

and she had noticed some clawing of those fingers. Dr. Haupt opined that the claimant’s 

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 THS is represented by Charity Lawrence, Esq. Ms. Thomas is represented by G. 

Patrick Jacobs, Esq. 

FILED

December 27, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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cervical radiculopathy at C8 had worsened. Dr. Haupt recommended an MRI and noted 

Ms. Thomas may need a referral to a pain management specialist or neurosurgeon. Also on 

October 26, 2020, the claim administrator issued an order that held the claim compensable 

for the left arm/shoulder/hand.

Ms. Thomas underwent a cervical MRI on November 17, 2020, revealing posterior 

disc osteophyte complex and uncovertebral hypertrophy at C5-C6 with mild spinal cord 

compression at that level; moderate canal stenosis and mild to moderate left and mild right 

neural foraminal narrowing; and mild cord compression without cord signal abnormality 

at C6-C7 from a posterior disc osteophyte complex with mild spinal canal stenosis at that 

level. An EMG performed on November 23, 2020, revealed left C-8 radiculopathy. 

On October 27, 2021, Ms. Thomas underwent C5-C6 arthroplasty versus anterior 

cervical discectomy and fusion performed by Sajeel Khan, M.D. On March 28, 2022, 

Prasadarao Mukkamala, M.D., performed an independent medical evaluation (“IME”) of 

Ms. Thomas. Using the American Medical Association’s Guides to the Evaluation of 

Permanent Impairment (4th ed. 1993) (“Guides”), Dr. Mukkamala opined that Ms. Thomas 

had 6% whole person impairment (“WPI”) for loss of cervical range of motion and 10% 

impairment due to the anterior cervical discectomy and fusion. Dr. Mukkamala used the 

West Virginia Code of State Rules § 85-20 (2006) (“Rule 20”) to find a total WPI of 25%. 

Dr. Mukkamala apportioned 8% of the impairment to preexisting degenerative conditions, 

leaving 17% WPI associated with the compensable injury. On October 13, 2022, David 

Soulsby, M.D., also performed an IME of Ms. Thomas and agreed with Dr. Mukkamala’s 

ratings and apportionment. 

Bruce Guberman, M.D., performed an IME of Ms. Thomas on July 29, 2022. Using 

the Guides, Dr. Guberman found 10% WPI for the anterior cervical discectomy and fusion, 

and 3% WPI for restriction in cervical range of motion. He applied Rule 20 to find that Ms. 

Thomas had 25% WPI. Dr. Guberman opined that there was no medical rationale for 

apportioning the impairment because, while Ms. Thomas had evidence of preexisting 

degenerative changes on imaging studies, these conditions were not symptomatic and did 

not cause any impairment, functional loss, or range of motion abnormalities prior to the 

compensable injury. 

On July 31, 2023, the Board issued an order reversing the claim administrator’s 

order granting Ms. Thomas a 17% PPD award, instead granting her a 25% PPD award. The 

Board found that there was no reasonable basis for apportionment in this claim and, thus, 

that Dr. Guberman’s report was the most persuasive. THS now appeals the Board’s order. 

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

part, as follows:
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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 

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, THS argues that the medical evidence establishes that apportionment 

was appropriate in this case because the impairment was definitely ascertainable. THS 

further argues that the Board misapplied the law under Duff to the instant case. Finally, 

THS argues that the Board failed to recognize and apply West Virginia’s “well-established

rules and regulatory guidelines for the apportionment of impairment.” We disagree.

In Duff, this Court found that: 

The Supreme Court of Appeals of West Virginia has previously recognized 

that radiographic evidence of degenerative changes alone is not sufficient to 

allow apportionment for preexisting injury. There must be something more, 

some evidence of a detrimental effect on work or the activities of daily living. 

Where such evidence of impairment is lacking, the Court has found that 

apportionment was not appropriate. See Galaxy Distributing of WV, Inc. v. 

Spangler, No. 19-0803, 2020 WL 6559079 (W. Va. Nov. 6, 2020) 

(memorandum decision) (unanimous decision) (the Board did not err in 

finding that apportionment was arbitrary and speculative where preexisting 

changes to right shoulder did not appear to affect the claimant’s work or daily 

activities); Minor v. West Virginia Division of Motor Vehicles, No. 17-0077, 

2017 WL 6503113, at *2 (W. Va. Dec. 19, 2017) (memorandum decision) 

(3-2 decision reversing Board of Review decision apportioning for 

preexisting condition) (“While the 2004 x-ray may have shown degenerative 

changes [to the right knee], those changes did not appear to affect Mr. 

Minor’s ability to work or his activities of daily living. Therefore, we agree 
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with the Office of Judges’ findings that . . . . apportionment of the impairment 

rating due to the 2004 x-ray was improper. . . .”).

Duff at 558, 882 S.E.2d at 924. 

Here, the Board found that Dr. Guberman’s report was the most reliable because he 

did not apportion for Ms. Thomas’ preexisting degenerative changes. The Board noted that, 

prior to the compensable injury, Ms. Thomas’ preexisting degenerative changes were 

asymptomatic, there was no evidence that the changes affected her work or daily life, and 

she had never received treatment for them. The Board further found that Dr. Guberman’s 

report was the most reliable because he did not apportion, and it granted Ms. Thomas a

25% PPD award based on Dr. Guberman’s report.

Upon review, we conclude that the Board appropriately analyzed this case under 

Duff and, further, was not clearly wrong in finding that it was inappropriate to apportion 

for Ms. Thomas’ preexisting conditions when, prior to the compensable injury the changes

were asymptomatic, did not affect her life or work, and were only documented by imaging

evidence after the injury. The Board was not clearly wrong in finding that Dr. Guberman’s 

report was more persuasive than the reports of Drs. Soulsby and Mukkamala, because Dr. 

Guberman appropriately refrained from apportioning for asymptomatic preexisting 

degenerative changes. Finally, the Board was not clearly wrong in determining that Ms. 

Thomas is entitled to a 25% PPD award based on Dr. Guberman’s report.

We find no merit in THS’s argument that the Board failed to apply West Virginia’s 

rules and regulatory guidelines in determining whether apportionment was appropriate in 

this case. Instead, we find that the Board appropriately analyzed the instant case under all 

appropriate laws, rules, and regulatory guidelines and, further, it did not err in finding that 

the impairment associated with Ms. Thomas’ asymptomatic preexisting degenerative 

changes were not definitely ascertainable. 

Accordingly, we affirm the Board’s July 31, 2023, order.

Affirmed.

ISSUED: December 27, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Charles O. Lorensen

Judge Thomas E. Scarr