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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS LARRY F. HENDERSON, Claimant Below, Petitioner vs.) No. 11-0720 (BOR Appeal No. 2044957) (Claim No. 2005036921)
FILED
February 5, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER Commissioner Below, Respondent and CABELA'S WHOLESALE, INC., Employer Below, Respondent

MEMORANDUM DECISION
Petitioner Larry F. Henderson, by Jonathan Bowman, his attorney, appeals the decision of the West Virginia Workers' Compensation Board of Review. The West Virginia Office of Insurance Commissioner, by Anna Faulkner, its attorney, filed a timely response. This appeal arises from the Board of Review's Final Order dated March 21, 2011, in which the Board affirmed a July 29, 2010, Order of the Workers' Compensation Office of Judges. In its Order, the Office of Judges affirmed the claims administrator's December 22, 2008, decision granting Mr. Henderson an additional 2% permanent partial disability award. 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. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

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Mr. Henderson was employed as a laborer with Cabela's Wholesale, Inc. He injured his cervical spine, lumbar spine, and right shoulder on April 4, 2005. On September 20, 2005, he was granted a 5% permanent partial disability award. Mr. Henderson has undergone four independent medical evaluations to determine the amount of permanent impairment resulting from his compensable injuries. On August 23, 2005, Dr. Brown performed an independent medical evaluation and recommended a total permanent partial disability award of 5% for Mr. Henderson's compensable injuries; on June 30, 2008, Dr. Langa examined Mr. Henderson and recommended a total permanent partial disability award of 7%; on June 11, 2009, Dr. Guberman recommended a total permanent partial disability award of 15%; and on December 10, 2009, Dr. Thrush recommended a total permanent partial disability award of 5% for Mr. Henderson's compensable injuries. In its decision granting Mr. Henderson an additional 2% permanent partial disability award, the claims administrator relied on the opinion of Dr. Langa. However, the Office of Judges found that Dr. Langa's report is not conclusive because she failed to apply West Virginia Code of State Rules

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