Supreme Court finds injured worker's disability rating should be lower

By Dee Thompson | May 2, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a woman with back and hip injuries due to a work injury in 2010 is not entitled to a 10 percent disability rating.

Mylinda L. Kimball-Shepherd was employed by Fortune Brands as a lead quality assurance technician on Sept. 13, 2010, when a fork truck struck her. As reported in the court’s memorandum decision, “The claim was held compensable for sacroilitis, sciatica, contusion of the buttocks, thoracic sprain/strain, lumbar sprain/strain, right hip strain and right leg contusion.” She was treated at Marietta Memorial Hospital and the diagnoses were sprained back, ruptured disk and sacroilitis.

Several doctors over the next several years indicated that Kimball-Shepherd’s ongoing pain was a result of degenerative spine issues and objective findings did not indicate impairment. Dr. Teresita deJosef treated her from November 2011 until February 2013. Dr. deJosef diagnosed Kimball-Shepherd with soft tissue injury.

According to the court’s Memorandum Decision, Dr. P. Kent Thrush did an independent medical evaluation in June 2011, and he reported that “Ms. Kimball-Shepherd was at maximum medical improvement and required no further treatment. He stated that the vast majority of lumbar sprains/strains resolve in three to six months but occasionally, subjective pain lasts beyond the normal healing time.”

Kimball-Shepherd underwent evaluation and treatment by PARS Neurosurgical Associates between January and July 2012. She was diagnosed with degeneration of the lumbar disc and lumbosacral neuritis/radiculopathy.

The court’s memorandum decision notes: “In a functional capacity evaluation by First Settlement Physical Therapy on Sept. 17, 2012, it was determined that Ms. Kimball-Shepherd’s self-reported problems and physical limitations were only partially substantiated by objective findings. She did seem to have underlying legitimate right hip pain. She reported no back pain but was self-limiting with several inconsistent measurements when distracted.”

Another independent medical examination was done in September 2013 by Dr. Sushil Sethi, who found that Kimball-Shepherd had stabilized and reached maximum medical improvement.

“Using the American Medical Association’s 'Guides to the Evaluation of Permanent Impairment' (4th ed. 1993), Dr. Sethi found zero percent right hip impairment. For the lumbar spine, he assessed 5 percent impairment. He placed Ms. Kimball-Shepherd in Lumbar Category II from West Virginia Code of State Rules § 85-20-C (2006). For the thoracic spine, he found 0 percent impairment. His total, combined rating was therefore 5 percent impairment,” the court's order states.

Dr. Bruce Guberman performed an independent medical evaluation in September 2014, and he diagnosed Kimball-Shepherd with a 10 percent impairment.

The Supreme Court found Sethi’s impairment rating to be more reliable. The opinion notes that “Both physicians correctly used the American Medical Association’s Guides and West Virginia Code of State Rules § 85-20. However, Dr. Guberman’s lumbar impairment rating included a non-compensable condition as he said in his report that his rating was based on a lumbar sprain/strain and a disc protrusion. No such disc protrusion has been held compensable in the claim. Additionally, Dr. Sethi was correct that the right hip MRI was normal and there are no objective findings to support Ms. Kimball-Shepherd’s complaints of right hip pain.”

Therefore, the lower court’s decision was reversed and remanded back to the lower court which had affirmed a 5 percent permanent partial disability award.

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