Appeal No. 2051045, Claim No. 2013030738
Stephanie Dixon, by Lawrence E. Sherman Jr., her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Arbors at Fairmont, by Lisa
Warner Hunter, its attorney, filed a timely response.
issue on appeal is the appropriate permanent partial
disability award that should be granted in this claim. This
appeal originated from the June 6, 2014, claims
administrator's decision granting a 1% permanent partial
disability award. In its December 16, 2015, Order, the
Workers' Compensation Office of Judges affirmed the
decision. The Board of Review's Final Order dated June
27, 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 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
Dixon, a certified nursing assistant, injured her knee in the
course of her employment on May 12, 2013. The claim was
originally held compensable for left knee pain. However, a
subsequent MRI showed a longitudinal tear of the anterior
horn of the lateral meniscus with a small adjacent meniscal
cyst. On December 6, 2013, Ms. Dixon underwent a left knee
arthroscopy and partial lateral medial meniscectomy. The
post-operative course was to include attending physical
therapy within one week and following up with her treating
physician, Joseph Fazalare, M.D., in two weeks.
December 19, 2013, Ms. Dixon saw Dr. Fazalare for her two
week follow-up. Dr. Fazalare noted that Ms. Dixon failed to
attend physical therapy. He encouraged her to go and
recommended that she return in four weeks. At her six week
follow-up, Dr. Fazalare again noted that Ms. Dixon had not
been compliant and only attended four physical therapy
sessions. Dr. Fazalare conveyed to Ms. Dixon's case
manager that her pain was out of proportion to what is
normal. Ms. Dixon continued to attend physical therapy
treatments, although on a lesser basis than recommended by
her treating physician, over the next few months. Her left
knee pain did not subside and caused Ms. Dixon to resort to
improper use of a cane and knee brace. Due to her
non-compliance, Ms. Dixon's physical therapy treatment
was suspended. Ms. Dixon underwent three independent medical
evaluations to determine the extent of any permanent
22, 2014, Ms. Dixon underwent an independent medical
evaluation performed by Bill Hennessey, M.D. Dr. Hennessey
noted that Ms. Dixon had a history of morbid obesity,
hypercholesterolemia, and left knee partial meniscectomy. He
determined Ms. Dixon had reached maximum medical improvement
and opined that no further treatment was necessary as there
was no residual impairment on which to base further
treatment. Dr. Hennessey noted that Ms. Dixon's use of a
cane was very atypical and bizarre, as was the fact that Ms.
Dixon continued to be off work. He noted that this was
evidence of symptom magnification and inappropriate illness
behavior. Dr. Hennessey assessed 1% whole person impairment
due to the partial lateral meniscectomy and opined that there
were no physical restrictions preventing her from
participating in any vocational or avocational activities of
her choice, including her occupation as a certified nursing
November 3, 2014, Ms. Dixon underwent an independent medical
evaluation performed by Ghazala Kazi, M.D. After physical
examination, Dr. Kazi assessed 5% whole person impairment for
Ms. Dixon's reduced motor strength of 4/5 at knee
extension. Dr. Kazi opined that he could have assessed 20%
impairment for Ms. Dixon's use of a cane. However, he
believed the use of a cane was temporary and after physical
therapy she would be able to discontinue use.
September 18, 2015, Ms. Dixon underwent an independent
medical evaluation performed by Prasadarao Mukkamala, M.D.
Dr. Mukkamala diagnosed contusion of the left knee, status
post arthroscopic partial lateral meniscectomy as a result of
the compensable injury. He assessed 1% whole person
impairment due to the partial lateral meniscectomy. Dr.
Mukkamala also reviewed the reports of Dr. Hennessey and Dr.
Kazi. Dr. Mukkamala agreed with Dr. Hennessey's report
but disagreed with Dr. Kazi, stating that neither he nor Dr.
Hennessey had noted any weakness of the quadriceps. Dr.
Mukkamala noted that Ms. Dixon's gait instability was the
result of several factors such as morbidity, excess weight,
lack of proper physical fitness, and neurological
unsteadiness and thus was not related to the compensable
injury, as Dr. Kazi had opined.
December 16, 2015, the Office of Judges affirmed the claims
administrator's decision granting a 1% permanent partial
disability award. The Office of Judges thoroughly reviewed
and described the evidence of record before noting that three
independent medical examinations had been performed. The
first, by Dr. Hennessey, indicated 1% impairment for the
partial lateral meniscectomy. The second evaluation,
performed by Dr. Kazi, indicated 5% impairment due to
weakness of the quadriceps. Finally, the third evaluation,
performed by Dr. Mukkamala, also indicated 1% impairment for
the partial lateral meniscectomy. The Office of Judges noted
that Dr. Kazi assessed 5% impairment due to weakness of the
quadriceps, which neither Dr. Hennessey nor Dr. Mukkamala,
who evaluated Ms. Dixon before and after Dr. Kazi, found. The
Office of Judges concluded that it was more likely than not,
based on the present record, that Ms. Dixon sustained 1%
whole person impairment as a result of the compensable injury
and thus affirmed the 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 June 27, 2016.
agree with the conclusion reached by the Office of Judges as
affirmed by the Board of Review. Both Dr. Hennessey and Dr.
Mukkamala assessed 1% whole person impairment. Dr. Kazi
assessed 5% for a weakness that neither of the other
evaluators noted. Dr. Fazalare and Dr. Hennessey opined that
Ms. Dixon's subjective symptoms are disproportionate to
what is normal. Additionally, Dr. Hennessey stated her
continued use of a cane and refusal to return to work is
evidence of symptom magnification. Further, Dr. Mukkamala
attributed Ms. Dixon's gait instability to conditions
such as her obesity, not the compensable injury. The evidence
of record supports a 1% permanent partial disability award.
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. Workman Justice Menis ...