The opinion
FILED
October 18, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
AMY D. HILTNER,
Claimant Below, Petitioner
vs.) No. 21-0502 (BOR Appeal No. 2055781)
(Claim No. 2015032969)
LOWE’S HOME CENTERS, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Amy D. Hiltner, by Counsel James D. McQueen, appeals the decision of the
West Virginia Workers’ Compensation Board of Review (“Board of Review”). Lowe’s Home
Centers, Inc., by Counsel Steven K. Wellman, filed a timely response.
The issue on appeal is the amount of Ms. Hiltner’s permanent partial disability in the
claim. The claims administrator granted a 41% permanent partial disability award on March 28,
2018. On September 21, 2020, the Workers’ Compensation Office of Judges (“Office of
Judges”) reversed the claims administrator’s decision and granted Ms. Hiltner a 46% permanent
partial disability award. This appeal arises from the Board of Review’s Order dated May 20,
2021, in which the Board affirmed the Order of the Office of Judges.
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.
The standard of review applicable to this Court’s consideration of workers’ compensation
appeals has been set out under West Virginia Code § 23-5-15, in relevant part, as follows:
(c) In reviewing a decision of the Board of Review, the Supreme Court of
Appeals shall consider the record provided by the board and give deference to the
board’s findings, reasoning, and conclusions . . . .
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(e) If the decision of the board effectively represents a reversal of a prior
ruling of either the commission or the Office of Judges that was entered on the
same issue in the same claim, the decision of the board may be reversed or
modified by the Supreme Court of Appeals only if the decision is in clear
violation of constitutional or statutory provisions, is clearly the result of erroneous
conclusions of law, or is so clearly wrong based upon the evidentiary record that
even when all inferences are resolved in favor of the board’s findings, reasoning,
and conclusions, there is insufficient support to sustain the decision. The court
may not conduct a de novo reweighing of the evidentiary record . . . .
See Hammons v. W. Va. Off. of Ins. Comm’r, 235 W. Va. 577, 582-83, 775 S.E.2d 458, 463-64
(2015). As we previously recognized in Justice v. West Virginia Office Insurance Commission,
230 W. Va. 80, 83, 736 S.E.2d 80, 83 (2012), we apply a de novo standard of review to questions
of law arising in the context of decisions issued by the Board. See also Davies v. W. Va. Off. of
Ins. Comm’r, 227 W. Va. 330, 334, 708 S.E.2d 524, 528 (2011).
Ms. Hiltner sustained a compensable injury during the course of her employment on June
5, 2015. According to her Report of Injury form, she slipped on plastic banding on the floor and
fell on her hand. She was found to have fractured her left wrist as a result of the fall. Ms. Hiltner
experienced swelling and pain at the left wrist with contractures of the left wrist and left hand.
She also complained of pain in her right shoulder, and that she was limited with relation to self-
care activities. It has been determined by several medical professionals that Ms. Hiltner has
reached maximum medical improvement, and several physicians have offered opinions regarding
the degree of whole person impairment for the compensable components in the claim.
Ms. Hiltner underwent an Independent Medical Evaluation conducted by Christopher
Martin, M.D., on March 5, 2018. Dr. Martin found marked objective abnormalities in the left
wrist, most notably flexion contractures of multiple joints of the fingers and left wrist. There was
also markedly reduced range of motion in many other joints and atrophy of the muscles of the
left hand. Although Dr. Martin stated that she lacked many of the classic features of complex
regional pain syndrome, he noted that she reported subjective symptoms beyond the left wrist.
Referring to the American Medical Association’s Guides to the Evaluation of Permanent
Impairment, (4th ed. 1993), Dr. Martin found 40% upper extremity impairment. He found 4%
upper extremity impairment for the left thumb, 21% impairment for the left index finger, 21%
impairment for the left middle finger, 21% for the left ring finger, and 8% upper extremity
impairment for the left little finger. Combining the upper extremity impairments resulted in an
overall upper extremity impairment of 69%. Dr. Martin referred to Table 3 and converted the
final amount to 41% whole person impairment. He stated that the amount of impairment is
applicable whether or not Ms. Hiltner has complex regional pain syndrome. By Order of the
claims administrator dated March 28, 2018, Ms. Hiltner was granted a 41% permanent partial
disability award.
Ms. Hiltner protested the claims administrator’s decision and received an Independent
Medical Evaluation by Bruce Guberman, M.D. In his report dated April 12, 2018, Dr. Guberman
concluded that she reached maximum medical improvement with a history of sprain of the right
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wrist occurring at work on June 5, 2015; history of fracture of the left radial styloid process on
June 5, 2015; and complex regional pain syndrome of the upper left hand and wrist, as well as
the right thumb, index, and middle fingers and both shoulders. Dr. Guberman assigned 13%
upper extremity impairment for Ms. Hiltner’s hand. Addressing the left index finger, he found
17% impairment. Dr. Guberman found 18% impairment for the left middle finger, 9%
impairment for the left ring finger, and 9% impairment for the left little finger. The total amount
of impairment for the hand was 66%, which converted to 59% upper extremity impairment.
Referring to Table 3, Dr. Guberman adjusted the impairment to 48% whole person impairment.
He believed that that the complex regional pain syndrome was spreading and involved not only
the left hand and wrist, but also the left shoulder, right shoulder, and right hand. Dr. Guberman
opined that if Ms. Hiltner’s shoulders were also considered compensable due to complex
regional pain syndrome, then 50% impairment of the left arm should be combined with 11%
impairment for the right arm, for a total of 56% whole person impairment.
On August 27, 2018, Zaid Al-Qudah, M.D., completed a Diagnosis Update and requested
that the diagnoses of complex regional pain syndrome, spasticity, and right shoulder pain be
included as compensable components of the claim. The claims administrator accepted the
diagnosis of complex regional pain syndrome as a compensable component in an Order dated
August 28, 2018. The claims administrator commented that Dr. Al-Qudah’s handwriting was
illegible for the second diagnosis and took no action upon the request. In addressing Ms.
Hiltner’s right shoulder pain, the claims administrator rejected the diagnosis for being too
general as a diagnosis. The record reflects no protest of the claims administrator’s Order.
Ms. Hiltner received an Independent Medical Evaluation by Prasadarao Mukkamala,
M.D., on October 15, 2018. Dr. Mukkamala performed a physical examination and reviewed her
clinical history and determined that she had reached maximum medical improvement. He also
noted that she complained of right shoulder pain. Dr. Mukkamala described the left hand as
being in claw hand deformity. He diagnosed Ms. Hiltner as suffering from a fracture of the left
distal radius, resulting in a suboptimal outcome in the form of contracture of the left wrist and
left hand. He estimated whole person impairment at 42%, based upon the abnormalities he
observed in the left wrist and left hand. Dr. Mukkamala stated that the limitations of the range of
motion at the right shoulder and left shoulder were not causally related to the compensable
injury. Nonetheless, Dr. Mukkamala concluded that if the Office of Judges were to consider the
left shoulder as a compensable component of the claim, he would amend his rating to 44% whole
person impairment.
Ms. Hiltner received a fully favorable decision from the Social Security Administration
awarding her disability benefits. It was found that she had several severe impairments, including
complex regional pain syndrome with contractures of loss of functional use of her left hand and
arm and progression to the left shoulder, bilateral carpal tunnel syndrome, and migraine
headaches. The onset of disability was established to be September 1, 2015.
An Independent Medical Evaluation report prepared by D. Kelly Agnew, M.D., dated
January 9, 2019, noted that diffuse tenderness was found at Ms. Hiltner’s left shoulder during
physical examination. Dr. Agnew stated that range of motion studies of her shoulders yielded
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questionable results. Addressing her right upper extremity, Dr. Agnew noted no right wrist
tenderness, but she did have diffuse tenderness at the left wrist. Ms. Hiltner had excellent and
full range of motion of the right wrist, but her left wrist lacked 35 degrees of neutral by way of
extension. She was capable of 60 degrees flexion with 5 degrees radial deviation and 10 degrees
ulnar deviation. In examining her left thumb, Dr. Agnew found tenderness without swelling or
discoloration. Decreased levels of extension were found in her index finger, middle finger, and
ring finger. Dr. Agnew diagnosed nondisplaced left distal radius fracture and right wrist bone
contusion. He saw no evidence of a right shoulder injury and commented that Ms. Hiltner’s
injury to her left upper extremity exhibited a very poor outcome with significant left upper
extremity contractures, but no actual confirmation of reflex sympathetic dystrophy or complex
regional pain syndrome. Referring the AMA Guides, Dr. Agnew assigned 63% upper extremity
impairment for the left hand with 34% upper extremity impairment for the left wrist. Dr. Agnew
stated that if the left shoulder were included in the calculation, Ms. Hiltner would have 14%
impairment of the upper extremity relative to the shoulder. The combined 79% upper extremity
impairment was converted based upon Table 3 to yield 47% whole person impairment and 46%
excluding the left shoulder.
In a Final Decision dated September 21, 2020, the Office of Judges concluded that a
preponderance of the credible medical evidence demonstrates that Ms. Hiltner has 46%
permanent partial disability impairment based upon the opinion of Dr. Agnew. The Office of
Judges noted that the disagreement regarding the degree of whole person impairment for the
compensable components in the claim is not especially great. As an orthopedic surgeon, Dr.
Agnew was found to be the most qualified of the medical examiners to make a determination of
whole person impairment in the claim. Although Ms. Hiltner was seeking an award based upon
Dr. Guberman’s recommendation, the Office of Judges found that the whole person rating of Dr.
Guberman is not supported by the other reports of record. Accordingly, the Office of Judges
reversed the March 28, 2018, Order of the claims administrator and granted Ms. Hiltner a 46%
permanent partial disability award. The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its Order on May 20, 2021.
After review, we agree with the reasoning and conclusions of the Office of Judges as
affirmed by the Board of Review. The impairment ratings recommended by the physicians of
record are similar. However, Dr. Agnew’s examination was the most recent, and it is a better
representation of Ms. Hiltner’s true permanent impairment.
Affirmed.
ISSUED: October 18, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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