Appeal No. 2050802, Claim No. 2014000132
Roger Evans, by John H. Shumate Jr., his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Lowe's Home Centers, Inc., by James
Heslep, its attorney, filed a timely response.
appeal arises from the Board of Review's Final Order
dated February 22, 2016, in which the Board affirmed a
September 2, 2015, Order of the Workers' Compensation
Office of Judges. In its Order, the Office of Judges affirmed
the claims administrator's April 16, 2014, decision
granting a 1% permanent partial disability award. The Court
has carefully reviewed the records, written arguments, and
appendices contained in the briefs, and the case is mature
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
Evans, a product service associate, sustained an injury while
at work on April 19, 2013, while he was carrying buckets of
paint up and down a ladder. The claims administrator held the
claim compensable for a left knee sprain/strain on July 9,
2013. On December 4, 2013, Mr. Evans underwent a surgical
arthroscopy of the left knee with partial medial
the course of his treatment, Mr. Evans sought treatment at
MedExpress numerous times. On July 14, 2014; July 24, 2014;
August 8, 2014; September 2, 2014; and October 6, 2014, Mr.
Evans was noted to have normal gait and full strength in his
knee. The medical records show Mr. Evans had no deformity in
his knee. He was occasionally noted by the physician at
MedExpress to have localized swelling and some limited range
of motion. Mr. Evans continued to suffer pain in his left
knee and ultimately underwent three independent medical
evaluations to determine his permanent partial disability.
March 26, 2014, Joseph Grady, M.D., performed an independent
medical evaluation on Mr. Evans. Dr. Grady's assessment
was status post left knee arthroscopic partial medial
meniscectomy. He determined that Mr. Evans had reached
maximum medical improvement and noted the only ratable
criteria would be on Table 64 of the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993). Under Table 64, Dr. Grady
assigned 1% whole person impairment for the partial medial
meniscectomy. Based on his report, the claims administrator
granted Mr. Evans a 1% permanent partial disability award on
April 16, 2014.
August 20, 2014, Yogesh Chand, M.D., performed an independent
medical evaluation on Mr. Evans. Dr. Chand noted that Mr.
Evans's gait was normal but did not believe Mr. Evans had
reached maximum medical improvement at that time. He felt
another MRI was needed. Although Dr. Chand did not believe
Mr. Evans was at maximum medical improvement, he proceeded to
provide an impairment rating under Table 36 of the American
Medical Association's Guides. Dr. Chand found
15% whole person impairment for gait derangement because Mr.
Evans wore a brace constantly and walked with a cane on a
part-time basis. Dr. Chand also found 4% impairment for loss
of flexion, 4% for arthritis, and 1% for the partial medial
meniscectomy. Dr. Chand ultimately assessed 15% impairment
based on the gait derangement.
Prasadarao Mukkamala, M.D., performed an independent medical
evaluation on April 21, 2015. Dr. Mukkamala found that Mr.
Evans had reached maximum medical improvement and recommended
a 1% impairment rating for the partial medial meniscectomy.
Dr. Mukkamala disagreed with Dr. Chand's recommendation
because there was no medical evidence of gait derangement.
Further, Mr. Evans's use of a brace did not rise to the
level of that described in the American Medical
Association's Guides as he merely wore a sleeve
brace purchased at a drug store.
September 2, 2015, the Office of Judges affirmed the claims
administrator's decision granting a 1% permanent partial
disability award. The Office of Judges found that Dr.
Chand's report was not reliable. Dr. Chand found Mr.
Evans had not reached maximum medical improvement, yet he
provided an impairment rating anyway. Additionally, the
Office of Judges found that Dr. Chand misused Table 36 of the
American Medical Association's Guides as there
was no evidence Mr. Evans wore an ankle foot orthosis brace
or evidence that he had gait derangement. The medical reports
of Mr. Evans's treating physicians at MedExpress all note
normal gait and strength in Mr. Evans's left knee. Both
Dr. Grady and Dr. Mukkamala recommended a 1% permanent
partial disability award. The Office of Judges found that Mr.
Evans failed to provide reliable evidence of greater
impairment. On February 22, 2016, the Board of Review
affirmed the Office of Judges' Order.
agree with the reasoning and conclusions of the Office of
Judges as affirmed by the Board of Review. Mr. Evans's
treating physicians, in medical reports dating from June 9,
2014, through October 6, 2014, all note that Mr. Evans's
gait was normal. Dr. Chand has been the only doctor to note
gait derangement. Further, both Dr. Grady and Dr. Mukkamala
recommended a 1% impairment rating for the partial medial
meniscectomy. A 1% permanent partial disability award is
supported by the evidence of record.
foregoing reasons, 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. Therefore, the decision of the Board of Review is
CONCURRED IN BY: Chief Justice Allen H. Loughry II, Justice
Robin J. Davis, Justice Margaret L. ...