Wise v. Wal-Mart Associates, Inc., 050516 WVSC, 15-0488

Docket Nº:15-0488
Party Name:JEANIE WISE, Claimant Below, Petitioner v. WAL-MART ASSOCIATES, INC., Employer Below, Respondent
Judge Panel:CONCURRED IN BY: Justice Robin J. Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Allen H. Loughry II DISSENTING: Chief Justice Menis E. Ketchum
Case Date:May 05, 2016
Court:Supreme Court of Appeals of West Virginia

JEANIE WISE, Claimant Below, Petitioner


WAL-MART ASSOCIATES, INC., Employer Below, Respondent

No. 15-0488

Supreme Court of West Virginia

May 5, 2016

BOR Appeal No. 2049938 (Claim No. 2008013086)


Petitioner Jeanie Wise, by M. Jane Glauser, her attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. Wal-Mart Associates, Inc., by Karin L. Weingart, its attorney, filed a timely response.

This appeal arises from the Board of Review's Final Order dated April 28, 2015, in which the Board affirmed an October 8, 2014, Order of the Workers' Compensation Office of Judges. In its Order, the Office of Judges reversed the claims administrator's August 27, 2012, and August 8, 2013, decisions which granted Ms. Wise a 26% permanent partial disability award and then granted an additional 7% for a total award of 33%. The Court has carefully reviewed the records, written arguments, and appendices contained in the briefs, 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 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.

Ms. Wise, a clerk, was injured on September 24, 2007, when she fell on a wet rug. The claim was held compensable for rotator cuff sprain, cervical disc displacement, lumbar spinal stenosis, knee contusion, lumbosacral sprain, shoulder/arm sprain, and knee/leg sprain. The claims administrator denied the addition of chronic kidney failure and chronic hoarseness to the claim on November 1, 2012.

In an August 13, 2012, independent medical evaluation, Christopher Martin, M.D., opined that Ms. Wise suffered minor strains as a result of the compensable injury. He noted that she has significant, pre-existing degenerative arthritis throughout her body as evidenced by diagnostic tests performed within days or months of the injury. He also noted that she displays a large number of non-organic findings suggestive of an exaggerated level of disability. Dr. Martin opined that much of the treatment rendered was for pre-existing conditions and that the conditions were not aggravated by the compensable injury. For the right...

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