STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

May 5, 2016 

RORY L. PERRY II, CLERK 

GABRIELE BISCHOF, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 15-0503 (BOR Appeal No. 2049835) 

(Claim No. 2011009204) 

WOOD COUNTY BOARD OF EDUCATION, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Gabriele Bischof, by George Zivkovich, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Wood County Board of Education, 

by Lisa W. Hunter, its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated April 28, 2015, in 

which the Board affirmed a September 3, 2014, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 10, 2012, 

decision to grant a 5% 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. Bischof, a bus driver for Wood County Board of Education, injured her leg and 

lower back on August 27, 2010, while attempting to stop children from getting off the bus. The 

Office of Judges held the claim compensable for a low back sprain, low back pain, lumbosacral 

neuritis, and radiculopathy. Notes from Donald Baker, M.D., of Camden Clark Hospital, dated 

September 8, 2010, found normal reflexes, strength, and sensation in the lower extremities. On 

October 27, 2010, Seyed Ghodsi, M.D., performed a neurosurgical consultation and found 

normal strength, motor function, and sensation in the lower extremities. 

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From December 8, 2010, through April 13, 2013, Matthew Walker, M.D., evaluated Ms. 

Bischof several times and documented normal strength, muscle tone, and sensation in the lower 

extremities. On April 24, 2012, an independent medical evaluation performed by Sushil Sethi, 

M.D., found she was at maximum medical improvement and suffered from 5% permanent partial 

disability. Dr. Sethi opined that all she sustained was a lumbar strain. He felt that any other 

issues were degenerative in nature. The claims administrator granted Ms. Bischof a 5% 

permanent partial disability award on August 10, 2012. 

On March 25, 2013, David Soulsby, M.D., performed an independent medical evaluation 

in which he found that Ms. Bischof was at maximum medical improvement. He opined that she 

had 17% impairment but that 70% of the impairment was related to her pre-existing 

spondylolisthesis. He then placed her into Lumbar Category II of West Virginia Code of State 

Rules § 85-20-C (2006) and assessed 5% whole person impairment. 

Treatment notes from Christopher Martin, M.D., dated June 26, 2013, found no 

significant lower extremity symptoms such as loss of strength, reflexes, or muscle tone. He 

found that Ms. Bischof’s alleged radiculopathy did not follow an L5 distribution. On July 22, 

2013, Bruce Guberman, M.D., performed an independent medical evaluation. He placed Ms. 

Bischof in Lumbar Category III of West Virginia Code of State Rules § 85-20-C. He also found 

significant radiculopathy and atrophy of the right leg. Dr. Guberman assessed 13% whole person 

impairment but also stated that it would be appropriate for her to receive transforaminal epidural 

injections. 

The Office of Judges affirmed the claims administrator’s decision on September 13, 

2014. It determined that Ms. Bischof sustained 5% permanent partial disability as a result of her 

compensable injury. The Office of Judges found that three independent medical evaluations were 

submitted into the record. Dr. Guberman assessed 13% impairment while Dr. Soulsby and Dr. 

Sethi found 5% impairment. The Office of Judges adopted the report of Dr. Soulsby because it 

was the best measure of impairment. The Office of Judges declined to adopt Dr. Guberman’s 

report because it believed that placing Ms. Bischof in Category III of West Virginia Code of 

State Rules § 85-20-C was inappropriate. It noted that placement in Category III requires 

significant signs of radiculopathy. Dr. Baker found normal strength and sensation in the lower 

extremities. Dr. Ghodsi, in his neurological evaluation, found normal strength, motor function, 

and sensation in the lower extremities. Finally, Dr. Martin found no evidence of significant 

neurological abnormalities such as changes in reflexes, muscle weakness, or sensory 

abnormalities. He did note that Ms. Bischof reported radicular symptoms but they did not follow 

a normal L5 distribution. The Office of Judges concluded that Dr. Soulsby’s was the most 

persuasive report because he apportioned his rating consistent with the evidence. There was 

ample evidence of pre-existing lumbar spondylolisthesis, and he took that into account. 

Furthermore, there was little evidence showing significant radiculopathy. The Board of Review 

adopted the findings of the Office of Judges and affirmed its Order on April 28, 2015. 

After review, we agree with the consistent decisions of the Office of Judges and Board of 

Review. Ms. Bischof urges this Court to consider the Office of Judges’ Order of June 2, 2015, 

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adding the L5-S1 disc herniation as a compensable diagnosis in the claim. Ms. Bischof failed to 

request a remand or an additional independent medical evaluation. This assertion alone, without 

an argument of how it should change the outcome of the case, is not enough to show this Court 

that a reversible error has occurred. 

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: May 5, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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