STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 4, 2015 

RORY L. PERRY II, CLERK 

CAROL HORN, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 14-0293 (BOR Appeal No. 2048714) 

(Claim No. 2010133877) 

CABELA’S INC.,
 

Employer Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Carol Horn, by M. Jane Glauser, her attorney, appeals the decision of the West 

Virginia Workers’ Compensation Board of Review. Cabela’s, Inc., by Mark J. Grigoraci, its 

attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated February 25, 2014, in 

which the Board affirmed an August 5, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s April 26, 2012, 

decision to grant 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. 

Ms. Horn, a sales associate for Cabela’s, Inc., was assisting a customer on May 6, 2010, 

when she lost her balance walking down stairs and fell on her knees. She also injured her 

cervical spine in the process. Ms. Horn was transported to Wheeling General Hospital where she 

was treated for her injuries. Ms. Horn was then referred to physical therapist Mark Goode for 

treatment. In his evaluation, he noted a range of motion in Ms. Horn’s knee of 130 degrees on 

the left side and 120 degrees on the right side. Mr. Goode also noted that Ms. Horn had good 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

strength in both quadriceps. Ms. Horn also reported to her treating physician Richard S. Glass, 

M.D., on April 7, 2011, and he noted that she was doing better and was back at work. Ms. Horn 

complained to Dr. Glass of pain in her legs bilaterally. Dr. Glass opined that her pain could be 

due to fibromyalgia. Dr. Glass noted that fibromyalgia was not related to the slip and fall injury 

on May 6, 2010. On March 26, 2012, Ms. Horn reported to Victoria Langa, M.D., for an 

independent medical examination. Dr. Langa opined that Ms. Horn was at her maximum degree 

of medical improvement and had no resulting impairment. 

On September 27, 2012, Ms. Horn reported to Bruce Guberman, M.D., for an 

independent medical evaluation. Dr. Guberman found 5% whole person impairment for the left 

knee and 5% whole person impairment for the right knee both based upon a weakness of 

extension. On February 7, 2013, Ms. Horn reported to Bill Hennessey, M.D., for another 

independent medical evaluation. He shared Dr. Langa’s opinion that she was at her maximum 

degree of medical improvement and had no resulting impairment. Based upon the reports of Dr. 

Langa and Dr. Hennessey, the claims administrator granted Ms. Horn a 0% permanent partial 

disability award. Ms. Horn protested. 

The Office of Judges determined that Ms. Horn was not entitled to any more than a 0% 

permanent partial disability award. The Office of Judges did not rely on the report of Dr. 

Guberman because his evaluation was not as consistent with the evidence in the record as Dr. 

Hennessey’s and Dr. Langa’s reports. The Office of Judges noted that the treatment reports 

throughout the record indicate that she had full range of motion and good strength in both of her 

quadriceps. The Office of Judges noted that her physical therapist, Mark Goode, documented 

good strength and range of motion on September 7, 2010, and December 13, 2011. Furthermore, 

the evaluation of Dr. Glass on October 11, 2010, showed a normal range of motion and good 

strength. Because Dr. Guberman’s evaluation was less consistent with the evidence of record, the 

Office of Judges concluded that his report was less reliable. The Board of Review adopted the 

findings of the Office of Judges and affirmed its Order. 

We agree with the findings of the Office of Judges and conclusions of the Board of 

Review. Dr. Guberman is the only physician that found any ratable impairment. The findings of 

Dr. Hennessey and Dr. Langa are consistent with the records of the physical therapist and the 

observations of Dr. Glass. Dr. Guberman’s evaluation is not consistent with the remainder of the 

evidence in the record. Because the evidence is more consistent with Dr. Hennessey’s and Dr. 

Langa’s opinions, it was not in error for the Office of Judges and Board of Review to rely on 

their reports. 

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. 

2 
 

 

 

 

 

 

ISSUED: November 4, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

3