CHARLESTON – The State of West Virginia Supreme Court of
Appeals upheld a Workers’ Compensation Office of Judges decision in a claim
filed against employer Mylan Pharmaceuticals Inc. that included somewhat
contradictory medical reports submitted by three different doctors.
Mylan employee Angela A. Belcher filed the claim after she
was injured in July 2011 when she slipped and caught herself with her arms,
allegedly resulting in right shoulder/upper arm sprain and a sprained right
The first doctor that evaluated Belcher’s injuries was Sushil
Sethi. In his Feb. 24, 2012 evaluation, Sethi said Belcher had been treated
with cortisone injections and extensive physical therapy.
According to the appeals court decision, Sethi “observed Ms.
Belcher guarding herself with range of motion in spite of attending over 100
“Dr. Sethi found Ms. Belcher to be self-limiting in
performing activities during the examination,” the ruling said. “He assessed 8
percent impairment based on the range of motion of the upper right extremity.”
As a result of Sethi’s evaluation, Belcher was granted an 8
percent permanent partial disability award by the claims administrator.
Belcher later received a spinal cord stimulator and was
again examined by Sethi. During the second exam, Belcher told Sethi that she “felt
good day to day with some general feeling of dysesthesia in the right arm.”
Sethi found no decreased range of motion. According to Sethi’s second
evaluation, “there was no increase in impairment,” so no additional disability
benefits were awarded.
When Bruce Guberman examined Belcher in June 2014, she
complained of “constant pain throughout her entire right arm which was only
partially improved with the spinal cord stimulator,” according to the appeals
court ruling. Guberman reported that Belcher had “an additional 34 percent whole
person impairment attributable to the injury.”
The final evaluation was performed by Christopher Martin in
September 2014. In his final report, Martin found that Belcher had no
impairment, and he told the board “the impairment rating assessed by Dr.
Guberman was excessive given Ms. Belcher’s functional status.”
The office of judges subsequently threw out the opinions
submitted by Guberman and Martin and relied on Sethi’s reports to deny Belcher
of any additional benefits.
The appeals court affirmed that ruling in a March 3
decision, saying “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.”