Appeal No. 2050788) (Claim No. 2012036325)
Johnny Kennedy, by John H. Shumate Jr., his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review.
issue on appeal is the appropriate amount of a permanent
partial disability award to be granted to Mr. Kennedy as a
result of the compensable injury in this claim. This appeal
originated from the April 10, 2014, claims
administrator's decision granting a 6% permanent partial
disability award. In its September 1, 2015, Order, the
Workers' Compensation Office of Judges reversed the
decision and granted a 10% permanent partial disability
award. The Board of Review's Final Order dated February
22, 2016, affirmed the Order of the Office of Judges. The
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration.
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 that the Board of Review's decision is
based upon a material misstatement or mischaracterization of
the evidentiary record. This case satisfies the "limited
circumstances" requirement of Rule 21(d) of the Rules of
Appellate Procedure and is appropriate for a memorandum
decision rather than an opinion.
Kennedy, a plumber, sustained an injury to his neck,
shoulder, and upper back while working underneath a sink on
May 7, 2012. Upon trying to remove a nut, it suddenly gave
way, causing Mr. Kennedy to jerk. He felt immediate pain in
his left arm and pain in his neck and back the next morning.
On June 1, 2012, the claims administrator held the claim
compensable for neck, upper back, and left shoulder
sprains/strains. Mr. Kennedy underwent three independent
medical evaluations to determine his permanent partial
March 4, 2014, Paul Bachwitt, M.D., performed an independent
medical evaluation of Mr. Kennedy. Dr. Bachwitt detailed Mr.
Kennedy's medical history which included a 2012 MRI
revealing a C3-4 disc protrusion and a left paracentral
protrusion at C5-6 with foraminal stenosis. At a previous
exam, Dr. Bachwitt had diagnosed Mr. Kennedy with a cervical
strain/sprain superimposed on pre-existing degenerative
changes and a left shoulder sprain. Dr. Bachwitt examined Mr.
Kennedy and found him to be at maximum medical improvement.
Upon examination, there was no clinical finding of a disc
lesion. Dr. Bachwitt believed there was a causal relationship
between the cervical and shoulder sprains/strains and the May
7, 2012, compensable injury. However, no further treatment
was necessary. In an addendum written on March 19, 2014, Dr.
Bachwitt recommended 4% impairment for the cervical spine and
6% impairment for motion restriction for a total of 10% whole
person impairment. Dr. Bachwitt apportioned half of that to
pre-existing degenerative changes. For the left shoulder, Dr.
Bachwitt found 6% impairment for the upper extremity. He
apportioned 5% to pre-existing conditions. Dr. Bachwitt's
total combined recommendation was 6% whole person impairment.
The claims administrator granted a 6% permanent partial
disability award based on Dr. Bachwitt's report.
January 15, 2015, Mr. Kennedy underwent an independent
medical evaluation by Bruce Guberman, M.D. Dr. Guberman
determined Mr. Kennedy had reached maximum medical
improvement. He assigned Mr. Kennedy 13% whole person
impairment for the cervical spine and 4% for the left
shoulder. His total recommendation was 18% whole person
impairment. Finally, Mr. Kennedy underwent an independent
medical evaluation by Prasadarao Mukkamala, M.D., on May 5,
2015. Dr. Mukkamala found 8% impairment for the cervical
spine and 2% for the left shoulder. He recommended a total of
10% whole person impairment. Dr. Mukkamala noted that Dr.
Guberman's report was flawed because he rated Mr. Kennedy
based on a neurological deficit when there was no objective
evidence of record to support such a diagnosis.
September 1, 2015, the Office of Judges issued an Order
reversing the claims administrator's decision. The Office
of Judges found that there was essentially no difference
between the findings of Dr. Bachwitt and Dr. Mukkamala except
that Dr. Bachwitt apportioned for pre-existing conditions.
The Office of Judges determined that the issue would be
resolved in favor of Mr. Kennedy pursuant to West Virginia
Code §23-4-1g (2005). The Office of Judges found that
Dr. Guberman's report was less reliable because no other
objective evidence was submitted to support a finding of
cervical spine radiculopathy. This cast doubt on his report
and the Office of Judges ultimately awarded Mr. Kennedy a 10%
permanent partial disability award. The Board of Review
adopted the findings of fact and conclusions of law of the
Office of Judges and affirmed its Order on February 22, 2016.
disagree with the reasoning and conclusions of the Office of
Judges as affirmed by the Board of Review. The Office of
Judges improperly applied West Virginia Code §23-4-1g,
which states that if after weighing all the evidence there is
a finding that an equal amount of evidentiary weight exists
favoring conflicting matters, the resolution most consistent
with the claimant's position will be adopted. While Dr.
Bachwitt and Dr. Mukkamala have seemingly identical
recommendations regarding an impairment rating, they do not
merit identical evidentiary weight. Dr. Mukkamala stated in
his independent medical evaluation that he did not find any
errors in Dr. Bachwitt's impairment rating, noting that
the only difference was that Dr. Bachwitt chose to apportion
the impairment while Dr. Mukkamala chose not to apportion the
impairment. It remains unclear what the true extent of Mr.
Kennedy's pre-existing conditions are in relation to his
foregoing reasons, we find that the decision of the Board of
Review is based upon a material misstatement or
mischaracterization of the evidentiary record. Therefore, the
decision of the Board of Review is reversed and remanded for
further development of the evidence regarding the extent of
Mr. Kennedy's pre-existing conditions in relation to his
CONCURRED:Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Menis E. ...