Appeal No. 2050987) (Claim No. 2014010192)
Scottie Elswick, by Edwin H. Pancake, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Eastern Associated Coal, LLC, by Henry C.
Bowen, its attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
award that Mr. Elswick is entitled to for his compensable
injury. This appeal arises from the claims
administrator's June 26, 2014, decision granting a 1%
permanent partial disability award. The Office of Judges
affirmed the decision in its November 24, 2015, Order. The
Board of Review then affirmed the Office of Judges' Order
on May 20, 2016. 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 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
Elswick, a continuous mine operator, was injured in the
course of his employment on September 24, 2013, when he was
struck by a large rock. Treatment notes from Charleston Area
Medical Center that day indicate that he was at work when a
fourteen foot long piece of rock rolled on top of him,
crushing him underneath and causing him to twist at the hips
and pinning his right leg underneath. X-rays of the right
tibia and fibula showed calcific densities which could be the
result of old avulsion fractures or unfused ossification
center. There were no acute fractures. X-rays of the right
knee also showed calcific densities but no acute fractures.
Mr. Elswick was diagnosed with right medial collateral
ligament sprain, right hip pain, and right anterior shin
pain. On October 4, 2013, the claim was held compensable for
right hip strain, right knee sprain/strain, and right lower
Bachwitt, M.D., performed an independent medical evaluation
on January 27, 2014, in which he diagnosed right hip, right
knee, and right ankle sprains/strains with classic findings
of a torn meniscus in the right knee. He felt there was a
causal relationship between the diagnoses and the compensable
injury. Dr. Bachwitt opined that Mr. Elswick had not yet
reached maximum medical improvement and recommended a right
knee arthroscopy as requested by Stanley Tao, M.D. On June 6,
2014, Dr. Bachwitt again evaluated Mr. Elswick and found that
he had reached maximum medical improvement. Using the
American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed. 1993), he
assessed 1% whole person impairment. The claims administrator
granted Mr. Elswick a 1% permanent partial disability award
on June 26, 2014.
Guberman, M.D., performed an independent medical evaluation
on January 13, 2015, in which he diagnosed chronic
post-traumatic strain of the right knee, status post partial
lateral menisectomy and medial plica excision on February 20,
2014, as well as chronic post-traumatic strain of the right
ankle. He found that Mr. Elswick had reached maximum medical
improvement and assessed 8% whole person impairment,
representing 4% for the ankle and 4% for the foot. On April
27, 2015, Prasadarao Mukkamala, M.D., performed an
independent medical evaluation in which he diagnosed right
hip strain and right knee sprain. He found a causal
relationship between the right knee and hip symptom and the
compensable injury. He found Mr. Elswick had reached maximum
medical improvement and diagnosed 1% impairment.
Office of Judges affirmed the claims administrator's
grant of a 1% permanent partial disability award on November
24, 2015. It noted that Eastern Associated Coal, LLC, argued
that Dr. Guberman's rating was excessive and unreliable.
Dr. Bachwitt found 1% impairment and seven months later, Dr.
Guberman assessed 8% impairment, though he failed to provide
evidence of a progression or worsening of Mr. Elswick's
condition. The Office of Judges found that Dr. Guberman's
report provided no explanation for the large increase in
impairment between exams. The Office of Judges noted that
Eastern Associated Coal, LLC, further argued that Dr.
Guberman used another table for rating a worse range of
motion on Mr. Elswick's knee than Dr. Bachwitt, who
correctly rated the right knee partial menisectomy using the
specific table designed for that rating. The Office of Judges
concluded that a preponderance of the evidence shows that Mr.
Elswick is entitled to a 1% 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 May 20, 2016.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Dr.
Guberman's findings are disproportionate and out of line
with the other independent medical evaluations of record. Mr.
Elswick was assessed with 1% impairment both before and after
Dr. Guberman's report. The evaluations of Dr. Bachwitt
and Dr. Mukkamala are more reliable than that of Dr.
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: Chief Justice Allen H. Loughry II Justice Robin J.
Davis Justice Margaret L. Workman Justice Menis E. ...