The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
WEST VIRGINIA DIVISION OF HIGHWAYS, June 2, 2026
Employer Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 26-ICA-10 (JCN: 2022025504)
RODNEY GAUVIN,
Claimant Below, Respondent
MEMORANDUM DECISION
Petitioner West Virginia Division of Highways (“WVDOH”) appeals the December
10, 2025, order of the Workers’ Compensation Board of Review (“Board”). 1 Respondent
Rodney Gauvin timely filed a response. WVDOH filed a reply. The issue on appeal is
whether the Board erred in reversing the claim administrator’s issue orders, which granted
Mr. Gauvin a 1% permanent partial disability (“PPD”) award, and granting him an
additional 13%, for a total PPD award of 14%.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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 West Virginia Rules of Appellate Procedure.
On December 15, 2022, the claim administrator issued an order approving the
December 7, 2022, request of Chad Micucci, M.D., for authorization for left shoulder
arthroscopy, diagnostic arthroscopy, debridement versus repair of the rotator cuff, biceps
tenodesis, and arthroscopic versus open techniques.2 Mr. Gauvin underwent an MRI of the
cervical spine on September 10, 2023, revealing a left paracentral disc protrusion at C4-C5
1
WVDOH is represented by Steven K. Wellman, Esq., and James W. Heslep, Esq.
Mr. Gauvin is represented by Christopher J. Wallace, Esq.
2
The claim administrator issued an order dated June 27, 2024, which indicated that
additional conditions were approved in the claim. The list of compensable conditions
included strain muscle, fascia, and tendon other part of biceps; strain muscle, fascia, and
tendon neck level; strain unspecified shoulder upper arm level of left arm; bicipital
tendonitis left shoulder; and superior glenoid labrum lesion left shoulder.
1
with perhaps slightly greater impingement of the left cervical cord compared to a prior
study; and a right paracentral disc protrusion with mild cord impingement at C5-C6 noted
from a prior study.3
Jennifer Lultschik, M.D., evaluated Mr. Gauvin on September 26, 2023. She stated
that Mr. Gauvin was injured on June 22, 2022, while operating an excavator when the
machine struck buried flexible plastic piping. Mr. Gauvin reported that the pipe bounced
up and struck his left elbow, shoulder, neck, and head. Dr. Lultschik indicated that Mr.
Gauvin underwent left shoulder arthroscopy and biceps tenodesis on February 16, 2023,
performed by Dr. Micucci. Dr. Lultschik noted that on May 1, 2023, Dr. Micucci reported
that Mr. Gauvin had resolution of his pain following a left elbow injection and had full
forward active range of motion and full functional range of motion in all planes upon
examination. Dr. Lultschik further noted that on July 25, 2023, Mr. Gauvin reported to
Gary Barcinas, PA, that he was having acute left shoulder pain radiating throughout the
left upper extremity with associated neck pain, left upper extremity weakness, numbness,
and headaches.
Using the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (4th ed. 1993) (“Guides”), Dr. Lultschik found that, for the diagnosis of strain
of muscle, fascia, and tendon at neck level, Mr. Gauvin had 4% whole person impairment
(“WPI”) from Table 75, Category IIB. Dr. Lultschik was unable to obtain valid cervical
range of motion measurements. Dr. Lultschik applied West Virginia Code of State Rules §
85-20 (“Rule 20”) and opined that Mr. Gauvin would fall within Cervical Category II,
which has a 5% to 8% impairment range, and thus she adjusted the finding of 4% to 5%.
From this, Dr. Lultschik apportioned all of the impairment to the degenerative changes
shown on the MRI scans and 0% to the compensable cervical strain injury. Regarding the
left shoulder and left biceps strains, Dr. Lultschik found 3% upper extremity impairment
(“UEI”) for loss of shoulder flexion, and a 2% UEI for loss of shoulder abduction. In total,
Dr. Lultschik found 5% UEI for loss of range of motion in the left shoulder. Regarding the
left elbow, Dr. Lultschik found 1% UEI for loss of elbow flexion. Thus, Dr. Lultschik
found a total of 1% UEI for loss of elbow range of motion. Combining the elbow and
shoulder impairments, Dr. Lultschik recommended 6% UEI for regional loss of range of
motion in the left upper extremity with no neurological impairments, which converted to
4% WPI. Dr. Lultschik compared the 4% WPI in the left extremity to a 5% WPI she found
for the uninjured right shoulder. Dr. Lultschik believed the 5% WPI found in Mr. Gauvin’s
right shoulder represented baseline impairment for both shoulders. Therefore, Dr.
Lultschik apportioned the 4% WPI for the left extremity and recommended no WPI for the
left shoulder. To summarize, Dr. Lultschik recommended 0% impairment for the neck, left
shoulder, and left elbow injuries.
3
The MRI report was not included in either party’s appendix, but it was noted in
Dr. Lultschik’s report.
2
The claim administrator issued an order dated October 17, 2023, which granted a
0% PPD award based upon Dr. Lultschik’s report dated September 26, 2023. Mr. Gauvin
protested this order.
On October 15, 2024, Marcus Cervantes, M.D., evaluated Mr. Gauvin and reviewed
his medical records and Dr. Lultschik’s report. Mr. Gauvin advised that he was having a
particularly bad day with symptoms and was frustrated that his exam was scheduled on that
date. Mr. Gauvin reported constant pain in his neck, pain in the right and left shoulders,
that his left hand was numb and weak, and he dropped things frequently. He stated that his
left elbow pain returned in March 2024 after having eight to nine months of relief from a
steroid shot. Dr. Cervantes noted that cervical paraspinals were nontender to palpation, and
the bilateral trapezius was tender to palpation with vocalization and grimacing. He also
noted significant tenderness with minimal superficial palpation across multiple anatomic
sites and structures, and pain with axial loading. Dr. Cervantes found that sensation was
absent on the left in digits one through four. Dr. Cervantes opined that there were no acute
findings on the cervical MRI. He stated there was a disk protrusion with associated
osteophyte complexes, which were degenerative in nature, and thus, preexisting to the
claim. Additionally, Dr. Cervantes stated that, regarding the elbow, the partial tear was
degenerative and due to epicondylitis rather than the industrial incident.
Using the Guides and Rule 20, Dr. Cervantes opined that, for the cervical spine, Mr.
Gauvin fell under Table 75, Category II-C due to degenerative changes that included
unoperated on herniated nucleus pulposus with or without radiculopathy. Dr. Cervantes
indicated that he was unable to obtain valid cervical range of motion measurements. Dr.
Cervantes further indicated that he was unable to obtain valid left elbow and shoulder range
of motion measurements. Dr. Cervantes opined that the range of motion testing was invalid
due to pain and Mr. Gauvin’s “submaximal effort.” Dr. Cervantes stated that Mr. Gauvin
had 5% WPI previously awarded for the cervical spine.4 He stated that, based on his
evaluation, 6% WPI was attributable to the cervical spine, from which he deducted 5% for
a previous award and recommended 1% WPI for the diagnoses in the claim.
The claim administrator issued an order dated November 23, 2024, granting Mr.
Gauvin a 1% PPD award based upon Dr. Cervantes’ report dated October 15, 2024. Mr.
Gauvin protested this order.
4
We note that it is not reflected in the record that Mr. Gauvin was awarded 5% WPI
related to the cervical spine in this claim. WVDOH, in its brief, indicates that Dr. Cervantes
mistakenly believed Dr. Lultschik recommended a 5% WPI to the cervical spine, and that
Mr. Gauvin was awarded a 5% PPD for the cervical injury in this claim.
3
On October 28, 2024, Bruce Guberman, M.D., evaluated Mr. Gauvin and noted that
his current complaints were constant pain and stiffness through the left shoulder with
occasional swelling, weakness in the left shoulder and the left biceps muscle, especially
with the use of the left arm or overhead or away from the body. Mr. Gauvin also reported
constant pain at the left elbow with stiffness and constant pain in the cervical spine that
radiated to head, shoulders, and the bilateral arms, hands, and fingers. Dr. Guberman noted
that Mr. Gauvin stopped working the day after his left shoulder surgery and returned to
work approximately three months after the surgery. Dr. Guberman stated that the
examination of the cervical spine revealed moderate tenderness and no spasm, and he
documented Mr. Gauvin’s range of motion measurements. The examination of the right
shoulder revealed no tenderness, redness, warmth, or swelling, and the range of motion
measurements were likewise documented. The examination of the left shoulder revealed
moderate tenderness but no redness, warmth, or swelling. Dr. Guberman noted well healed
surgical scars on the left shoulder, and he documented the range of motion findings.
Using the Guides, Dr. Guberman rated the cervical spine, and he classified Mr.
Gauvin under Table 75, Category II-B for 4% WPI. He opined that the range of motion
studies of the cervical spine were felt to be reliable, reproducible, and valid, and not due to
pain or fear of injury. Dr. Guberman found 5% WPI for reduced flexion and extension; 2%
WPI for reduced lateral flexion; and 4% WPI for reduced rotation for a total of 11% WPI
for reduced cervical range of motion, which he combined with the 4%WPI from Table 75,
for a total of 14% WPI. Applying Rule 20, Dr. Guberman opined that Mr. Gauvin would
fall within Cervical Category II, which has a 5% to 8% impairment range, and thus he
adjusted the rating to 8% WPI. He stated that he placed Mr. Gauvin under Category II
because he had a clinical history and examination findings consistent with an injury at work
on June 22, 2024, and also for radiation of pain into his left arm with sensory loss, which
are consistent with non-verifiable radicular components. Dr. Guberman opined that the
atrophy of the left arm was, at least in part, related to the injuries to the left shoulder and
left elbow. Dr. Guberman noted that imaging studies showed evidence of preexisting
degenerative changes, but as far as could be determined, Mr. Gauvin was asymptomatic
with no impairment in his activities of daily living, no limitations at work, no pain, no
stiffness, and would not have qualified for an impairment rating for cervical spine before
the current injury under either the range of motion model or Rule 20. Therefore, Dr.
Guberman attributed the entire 8% WPI to the injury.
Regarding the left shoulder, Dr. Guberman opined that Mr. Gauvin had 5% UEI for
range of motion abnormalities of flexion and extension, 4% UEI for range of motion
abnormalities in abduction and adduction, and 2% UEI for range of motion abnormalities
in internal and external rotation, for a combined impairment of 11% UEI for range of
motion abnormalities in the left shoulder. Dr. Guberman converted 11% UEI to 7% WPI.
He stated that Mr. Gauvin did have a prior history of left shoulder surgery, but he
apparently recovered without sequelae, and imaging studies revealed evidence of
4
preexisting degenerative changes. Dr. Guberman also noted range of motion anomalies on
examination of the uninjured right shoulder, presumably related to underlying degenerative
changes. He stated that there was 2% UEI for loss of range of motion of the uninjured right
shoulder, which he converted to a 1% WPI. Dr. Guberman deducted that amount from the
7% WPI for the left shoulder, leaving 6% related to the injury. Regarding the left elbow,
Dr. Guberman stated that the range of motion was the same as that of the uninjured right
elbow, and thus, he recommended no impairment for the left elbow. Dr. Guberman
ultimately found 14% WPI related to the injury.
On July 29, 2025, Christopher Martin, M.D., evaluated Mr. Gauvin and reviewed
his medical history. Dr. Martin opined that the imaging studies showed degenerative
changes at four levels of the cervical spine, which were preexisting and unrelated to the
injury. For the left shoulder, Dr. Martin also opined that findings were degenerative and
preexisting. Mr. Gauvin reported express discomfort with all range of motion
measurements in the neck and shoulder. Mr. Gauvin further reported that a supine position
was generally very uncomfortable for him and he never lies flat. Dr. Martin indicated that
Mr. Gauvin completed three measures in all planes of the cervical spine, but he stopped
each maneuver abruptly and reported muscle spasms and sensations of painful pulling and
burning. Mr. Gauvin also reported pain over the biceps tendon and tip of the left shoulder,
and that his entire left hand was numb. Mr. Gauvin indicated that he would be unable to
perform the exercises required for range of motion measurements for the right shoulder as
he had suffered a recent injury. Using the Guides and Rule 20, Dr. Martin provided an
impairment rating. Dr. Martin opined that, for the cervical spine, a Table 75 impairment
was unjustified as there were no structural findings related to a strain. Dr. Martin reported
that the range of motion measurements for the cervical spine and left shoulder were invalid
as they were pain limited. As a result, Dr. Martin opined that Mr. Gauvin had 0% WPI
related to the compensable injury.
On December 10, 2025, the Board reversed the claim administrator’s orders, which
granted Mr. Gauvin a 1% PPD award, and instead granted him an additional 13%, for a
total PPD award of 14%. The Board found that Mr. Gauvin established that he was entitled
to a 14% PPD award. WVDOH 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:
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:
5
(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.
Syl. Pt. 2, Duff v. Kanawha Cnty. Comm’n, 250 W. Va. 510, 905 S.E.2d 528 (2024).
WVDOH argues that it is “inherently inconsistent” to find that Dr. Martin’s report
should be disregarded as an outlier simply because he had a difference of opinion with
regard to classification under the Guides, yet the Board failed to find the same for Dr.
Guberman’s report. Further, WVDOH argues that the Board disregarded Dr. Martin’s
reasoning as to why the assignment of impairment under Table 75 of the Guides was
inappropriate. Finally, WVDOH argues that Mr. Gauvin is being “rewarded for
inconsistent effort.” We disagree.
Here, the Board found that Dr. Guberman’s report is the most reliable. The Board
also rejected WVDOH’s argument that Dr. Guberman’s report must be rejected because he
was the only evaluator to obtain valid cervical range of motion findings. According to the
Board, it is not acceptable or logical to reject a report solely because it provides valid
findings.
Further, the Board found that Dr. Martin’s report was not reliable given that he was
the only evaluator to find no cervical impairment under both the Guides and Rule 20. The
Board noted that all other evaluators found cervical impairment. The Board also noted that
Drs. Lultschik and Guberman found valid range of motion findings for the left and right
shoulder, and that both reports were reliable with respect to the upper extremities.
According to the Board, Dr. Guberman’s and Dr. Lultschik’s upper extremity
recommendations were entitled to equal weight, and therefore pursuant to West Virginia
Code § 23-4-1g(a) the Board adopted the opinion most favorable to the claimant, which is
Dr. Guberman’s finding of a 6% WPI for the left shoulder.5 In summary, the Board found
that Dr. Guberman’s findings with respect to the cervical spine and left upper extremity are
the most reliable. Therefore, it found that Mr. Gauvin is entitled to 14% WPI as
recommended by Dr. Guberman.
5
West Virginia Code § 23-4-1g(a) provides in part that “[i]f, after weighing all of
the evidence regarding an issue in which a claimant has an interest, there is a finding that
an equal amount of evidentiary weight exists favoring conflicting matters for resolution,
the resolution that is most consistent with the claimant's position will be adopted.”
6
WVDOH concedes that the reports of Drs. Lultschik and Cervantes are invalid. It
notes that Dr. Lultschik’s report should not be used for an impairment rating because she
apportioned for preexisting degenerative impairment when there are no medical reports of
record to provide any “definitely ascertainable” preexisting impairment. Dr. Cervantes,
WVDOH concedes, mistakenly apportioned 5% impairment to a previous PPD award.
Instead, WVDOH argues that the Board was clearly wrong for not adopting Dr. Martin’s
report.
The Board did not commit error when it found that Dr. Martin’s opinions were an
outlier because he is the only evaluator to recommend no impairment to the cervical spine.
The evidence in the record indicates Mr. Gauvin has cervical impairment, and Mr. Gauvin
demonstrated that his cervical impairment is from the compensable injury. Moreover, the
Board correctly rejected WVDOH’s arguments that Dr. Guberman’s report should be
rejected because he observed valid range of motion measurements. The Board did not find
that Mr. Gauvin was malingering or intentionally subverting range of motion tests.
Accordingly, we affirm the Board’s December 10, 2025, order.
Affirmed.
ISSUED: June 2, 2026
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White
7