1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

BOONE COUNTY BOARD OF EDUCATION, Employer Below, Petitioner

vs.) No. 16-1020 (BOR Appeal No. 2051347) (Claim No. 2009065047)

ARELINE L. BASSHAM, Claimant Below, Respondent

MEMORANDUM DECISION

Petitioner Boone County Board of Education, by Marion E. Ray, its attorney, appeals the decision of the West Virginia Work ers’ Compensation Board of Review.

The issue on appeal is the appropriate amount of a permanent partial di sability award to be granted as a result of the compensable injury in th is claim. This appeal originated from the March 30, 2015, claims administrator’s deci sion granting a 10% permanent part ial disability award. In its May 17, 2016, Order, the Workers’ Compensation Office of Judges reversed the decision and granted a 32% permanent partial disability aw ard. The Board of Review ’s Final Order dated September 27, 2016, affirmed the Order of the Office of Judges. The Court ha s carefully reviewed the records, written arguments, a nd appendices contained in the brie fs, 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 question of law and no prejudicial e rror. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of A ppellate Procedure.

Areline L. Bassham, a school teacher, suffere d an L1 compression fracture when she fell and struck her back in the course of her employment on October 15, 2008. Ms. Bassham underwent kyphoplasty and while recuperating in the hospital developed a kidney infection and had to be catheterized. Ms. Bassham began having difficulty urinating following the surgery and was unable to completely void her bladder. Her symptoms progressively worsened and Ms. Bassham sought treatment from Lawrence Wyner, M.D. Ms. Ba ssham was scheduled for a Urodynamic Evaluation which was performed and the report noted that Ms. Bassham “strai ns to void.” Ms. Bassham also 

### FILED

September 15, 2017

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 underwent an ultrasound which documented no eviden ce of urinary retention but stated that the bladder was collapsed, as it had been recently emptied by catheterization.

After evaluation, Dr. Wyner diagnosed sens ory neurogenic bladder and completed a Diagnosis Update requesting that the condition be added to the cl aim. The claims administrator denied adding neurogenic bladde r to the claim on November 21, 2013. The Office of Judges

reversed the claims administra tor’s decision on January 30, 2 015, and remanded the claim to the

claims administrator to refer Ms. Bassham for an independent medical evaluation concerning the

condition. Ms. Bassham underwent tw o independent medical evaluatio ns to determine the extent of her permanent impairment arising from the neurogenic bladder condition resulting from her compensable injury.

On March 23, 2015, Ms. Bassham underwent an independent medical evaluation performed by Robert Walker, M.D. Dr. Walker reviewed medical records and stated that the neurogenic bladder diagnosis was based on a hi story of urinary retention following trauma associated with L1 compression fracture. Dr. Walker opined that Ms. Bassham had reached maximum medical improvement and will need to continue infrequent monitoring and selfcatheterization. Based on the Amer ican Medical Association’s Guides to the Evaluation of Permanent Impairment (4th ed. 1993), Dr. Walker placed Ms. Bassham under Table 17 in Section 4.3d, in the second category for 10% - 25% impairme nt. He stated that Ms. Bassham “has good bladder reflex activity, limited capacity, and inte rmittent emptying without voluntary control.” He

further stated that Ms. Bassham was able to mana ge her retention with regular self-catheterization

and noted that she has diabetes mellitus, which may contribute to the underlying neurological

deficit. Dr. Walker assessed 10% whole person impairment. The cl aims administrator granted Ms. Bassham a 10% permanent partial disabil ity award based on Dr. Walker’s report.

On August 8, 2015, Ms. Bassham underwent an independent medical evaluation performed by Bruce Guberman, M.D. Dr. Guberman reviewed the medical records and stated that Ms.

Bassham has to self-catheterize re gularly. Ms. Bassham stated that she uses the catheter when she has a feeling of bladder fullness and lower abdomin al pain. She denied nocturia or bedwetting but stated that if she waits too long to catheterize, she has leakage and dribbling. Using Table 17 of

the American Medical Association’s Guides , Dr. Guberman placed Ms. Bassham in the third category which states “the patient has poor bladde r reflex activity, and intermittent dribbling and no voluntary control.” He stated that she is unabl e to pass her urine on her own and must selfcatheterize in order to empty her bladder. He assessed 32% whole person impairment. Dr. Guberman stated that Dr. Walker opined that Ms. Bassham “has good bladder reflex activity, limited capacity, and intermittent emptying without voluntary control.” Dr. Guberman disagreed with that finding because Ms. Bassham had no voluntary control of her bladder since she has to

catheterize herself.

The Office of Judges rendered its decision in an Order dated May 17, 2016. The Office of Judges noted that little explanation had b een provided surrounding the Urodynamic Evaluation and ultrasound, and no commentary regarding the significance of either report was provided. The difference between the impairment ratings provided by the two evaluating physicians is that Dr.

Walker concluded that Ms. Ba ssham had good bladder reflex activity whereas Dr. Guberman3 found poor bladder reflex activity. However, bladde r reflex was not defined by either physician, nor was an in depth analysis between the differe nt categories provided. Both physicians seemed in agreement that Ms. Bassham was unable to void he r bladder and thus must self-catheterize. Also, Drs. Walker and Guberman seemed to agree that Ms. Bassham was able to manage her retention with regular self-catheteriza tion. Neither physician apportioned their findings. The Office of Judges concluded that the reports of Dr. Walker an d Dr. Guberman were of equal evidentiary value and that as Dr. Guberman’s repo rt was most consistent with Ms. Bassham’s position, it would be adopted. Therefore, the Office of Judges reversed the claims admi nistrator’s decision granting a 10% permanent partial disability award and granted a 32% perman ent partial disability award based on Dr. Guberman’s report. The Board of Review adopted the findings of fact and conclusions of law of the Office of Judges and affirmed its Order on September 27, 2016.

We agree with the conclusion reached by the Office of Judges and Board of Review. The Office of Judges has determined that the reports of Dr. Guberman and Dr. Walker are of equal evidentiary value. After reviewing the record, it appears that the Order of the Office of Judges granting a 32% permanent partial disability aw ard is supported by the evidence of record. Therefore, the Board of Review’s Order a ffirming the decision is not clearly wrong.

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: September 15, 2017

CONCURRED IN BY: Chief Justice Allen H. Loughry II

Justice Robin J. Davis Justice Margaret L. Workman

Justice Menis E. Ketchum

DISSENT:

Justice Elizabeth D. Walker

WALKER, J., dissenting:

The Office of Judges (OOJ or ALJ) failed to conduct a de novo review of the entire

record in this case and ensure th at the permanent partial disabili ty award was based upon reliable4 evidence. The Board of Review further failed to hold the OOJ to even a minimal standard of meaningful review of th e record containing legal conclusions c onsistent with statutory law. For these reasons, I respectfully di sagree with my colleagues and woul d reverse the Board of Review’s order granting a 32% permanent partial disability award.

The OOJ decision violates the statute mandating that a permanent partial disability award be based solely upon whole body medica l impairment excluding any pre-existing

condition. 1 The medical evidence in the record shows th at the claimant sought treatment prior to her injury, yet the ALJ neither discussed the spec ific medical records documenting this pre-injury

treatment nor discounted the reliabilit y of the IME reports in light of their failure to address this significant information and specifically apportion the award accordingly.

Instead of exercising its power to rema nd the claim for a determination of preexisting impairment, the Board undertook the same cu rsory review of the ev idence. I find this troubling particularly given the si zable difference in the percentage of the ratings between the two IME physicians, neither of whom ar e urologists. To support a decisi on to increase the permanent partial disability award by 22%, the Board and the OOJ should have been certain that the evidence unequivocally supported this increase. To the c ontrary, Dr. Guberman’s report, which is relied upon to increase the award, does no t contain detailed findings addr essing pre-existing treatment and possible pre-existing permanent whole body medical impairment.

What I find most egregious, however, is th e Board’s failure to address the ALJ’s blatant disregard for the statute requiring a weighing of all the evidence and abolishing the “rule of liberality.” 2 Even though the ALJ found that the two IME reports in the record did not provide sufficient information and analysis to support th eir respective calculation s of whole body medical impairment, the ALJ nonetheless found each report of equal weight and ultimately concluded that the permanent partial disability for neurogenic bla dder must be increased by 22% for a total award of 32%. The ALJ’s approach is tantamount to a de facto application of th e “rule of liberality,” which is no longer the la w in West Virginia.

When an ALJ finds as a matter of fact that neither of two reports meets the necessary threshold of reliability, 3 then he or she is bound to do that which “may be necessary for a full and complete disposition of the cas e,” which includes remanding the claim. 4

I would have reversed the Board’s order with directions to remand the claim to the OOJ for further development of the facts. This could have included an additional IME conducted by a qualified urologist or further factual developm ent as necessary to ascertain a credible and reliable whole body medical impairment for the claimant’s neurogenic bladder.

1 

### West Virginia Code §§ 23-4-6i & 23-4-9b.

2 

### W.Va. Code §23-4-1g.

3 

### W.Va. Code §23-4-6i.

4 

### W.Va. Code §23-5-9(e).5