Appeal No. 2051128) (Claim No. 2014021286)
Kevin Pegram, by Reginald D. Henry, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Speed Mining, LLC, by Henry C. Bowen, its
attorney, filed a timely response.
issue on appeal is an award of permanent partial disability
benefits. On September 10, 2014, the claims administrator
granted Mr. Pegram a 2% permanent partial disability award.
The Office of Judges affirmed the award of 2% permanent
partial disability in its March 1, 2016, Order. The Order was
affirmed by the Board of Review on August 31, 2016. 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
Pegram, an underground coal miner, was shoveling sludge on
January 21, 2014, while working at Speed Mining LLC, when he
felt pain in his right shoulder. The next day, he was treated
at Raleigh General Hospital and diagnosed with a right
shoulder sprain. The claim was held compensable for a right
shoulder strain/sprain on February 6, 2014. A February 19,
2014, right shoulder MRI revealed the possibility of a SLAP 3
tear, moderate spurring at the acromioclavicular joint, and
swelling with the acromioclavicular and coracoclavicular
ligaments. Matthew Nelson, M.D., performed a right shoulder
arthroscopy with decompression and labral repair for a
pre-operative diagnosis of right shoulder labral tear on
April 1, 2014.
Grady, M.D., performed an independent medical evaluation on
July 29, 2014. Dr. Grady noted Mr. Pegram attended physical
therapy from April 7, 2014, through the week of July 22,
2014. Additionally, he had been released to return to work
and from Dr. Nelson's care on July 22, 2014. Dr. Grady
assessed status post right shoulder arthroscopic
decompression and labral repair. Dr. Grady assessed 4%
impairment of the right upper extremity based on loss of
range of motion. The 4% right upper extremity impairment
converted to 2% whole person impairment.
claims administrator granted 2% permanent partial disability
on September 10, 2014, based on the report of Dr. Grady. Mr.
Pegram's attorney requested that right shoulder labral
tear be added as a compensable component in the claim on
October 8, 2014, and the claims administrator granted the
request on October 24, 2014. After the entry of those
decisions of the claims administrator, Mr. Pegram had three
additional independent medical evaluations.
Robert Walker, M.D., performed an independent medical
evaluation on December 16, 2014. Dr. Walker assessed 15%
upper extremity impairment for the right arm based on loss of
range of motion. The 15% right upper extremity impairment
converted to 9% whole person impairment for the right upper
extremity. Next, H.R. Fleschner, D.C., performed an
independent medical evaluation on February 23, 2015. Dr.
Fleschner assessed 15% upper extremity impairment for the
right upper extremity based on loss of range of motion. This
converted to 9% whole person impairment.
Prasadarao Mukkamala, M.D., performed an independent medical
evaluation on September 24, 2015. Dr. Mukkamala assessed 2%
whole person impairment based on loss of range of the right
upper extremity. Dr. Mukkamala noted the medical records of
Dr. Nelson showed Mr. Pegram had full range of motion of the
right shoulder when Dr. Nelson examined him on July 3, 2014.
Dr. Mukkamala also noted Mr. Pegram's abduction had
improved in the time between Dr. Nelson's evaluation and
his evaluation. In Dr. Mukkamala's opinion, it was
inconceivable that Mr. Pegram's condition could have
worsened in the time between Dr. Grady's evaluation and
his evaluation. Therefore, he questioned the credibility of
the range of motion findings that were reported by Dr. Walker
and Dr. Fleschner.
March 1, 2016, the Office of Judges affirmed the claims
administrator's September 10, 2014, award of 2% permanent
partial disability. It noted that the evaluations of Drs.
Grady and Mukkamala were very similar. Dr. Mukkamala's
evaluation showed slightly improved range of motion from that
of Dr. Grady. Mr. Pegram had significantly worsened range of
motion when he was evaluated by Dr. Walker on December 16,
2014, and by Dr. Fleschner on February 23, 2015, than he did
when he was evaluated by Dr. Grady on July 29, 2014, and Dr.
Mukkamala on September 24, 2015. The Office of Judges
determined that if Mr. Pegram's condition had devolved so
much in between examinations, it would have appeared that he
needed further treatment and could not have attained maximum
medical improvement. However, all four physicians opined he
had reached maximum medical improvement. Additionally, Mr.
Pegram did not receive additional treatment between the time
of Dr. Fleschner's evaluation and the time of Dr.
Mukkamala's evaluation. Assuming the evaluations by Drs.
Walker and Fleschner were valid, Mr. Pegram had improved
considerably by the time he saw Dr. Mukkamala. The Office of
Judges determined any condition that would have increased the
impairment rating assessed by Drs. Walker and Fleschner had
to have been temporary as Mr. Pegram was much improved when
Dr. Mukkamala evaluated him. Therefore, the Office of Judges
found that a preponderance of the evidence supported the
claims administrator's award of 2% permanent partial
August 31, 2016, the Board of Review adopted the findings of
fact and conclusions of law and affirmed the Office of
Judges. After review, we agree with the Board of Review. Dr.
Grady's independent medical evaluation was performed one
week after Mr. Pegram completed physical therapy and five
days after that he was released to return to work and
released from his treating physician's care. More than
one year later, Dr. Mukkamala assessed the same degree of
impairment. The Board of Review did not err in relying on
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. ...