JAMES D. WHITE, Claimant Below, Petitioner
CONSOLIDATION COAL COMPANY, Employer Below, Respondent
Appeal No. 2051184) (Claim No. 860042131)
James D. White, by William B. Talty, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Consolidation Coal Company, by Bradley A.
Crouser, its attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
Mr. White sustained as a result of his compensable right knee
injury. The claims administrator granted a 4% permanent
partial disability award on July 11, 2013. The Office of
Judges affirmed the decision in its March 2, 2016, Order. The
Order was affirmed by the Board of Review on September 27,
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
White, a coal tipple operator and mechanic, was injured in
the course of his employment on January 18, 1986, when his
right knee was struck by a heavy pipe. The claim was
originally held compensable for sprain/strain of the knee/leg
and later for loose body in knee and lesion in lateral
February 23, 2012, treatment note by Yogesh Chand, M.D.,
indicates Mr. White was doing much better after right knee
surgery. He had no numbness or tingling of his right foot but
did still experience a burning sensation. He indicated that
Mr. White had arthritis of the knee and as a result of loose
bodies digging into the articular surface, the condition was
steadily degenerating. He did not require a total
arthroplasty at that time. Dr. Chand opined that Mr. White
had reached maximum medical improvement.
26, 2013, Joseph Grady, M.D., performed an independent
medical evaluation in which he found that Mr. White had
reached maximum medical improvement. At that time, the
compensable conditions in the claim were lesion of lateral
popliteal nerve, loose body of knee, sprain of unspecified
sites of the knee and leg, and sprain/strain of the knee and
leg. Mr. White worked until November 10, 1999, when he
sustained a lower back injury. A July 6, 2009, MRI of the
right knee showed myxoid degeneration of the medial meniscus
without a definite tear. An EMG revealed right peroneal
neuropathy. On November 16, 2011, Mr. White underwent a right
knee arthroscopy. He continued to treat with Dr. Chand on a
regular basis. On examination, Dr. Grady noted Mr.
White's right knee flexion was 115 degrees for the right
knee and 130 for the left. Knee extension was normal. Dr.
Grady diagnosed status post right knee arthroscopy and
repositioning of the peroneal nerve with some residual
peroneal neuropathy. Using the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993), Dr. Grady found no specific
ratable impairment for Mr. White's knee surgery under
Table 64. Based on range of motion, he assessed a 0%
impairment rating. For the peroneal nerve injury, he found 0%
for the common peroneal nerve but did find 20% motor deficit.
This equates to 3% whole person impairment. He also assessed
1% for abnormal sensation in the right foot. His total
recommendation was 4% impairment. The claims administrator
granted a 4% permanent partial disability award on July 11,
2013. On March 3, 2014, the claims administrator authorized a
right foot brace requested by Dr. Chand.
June 4, 2014, report, Dr. Chand estimated Mr. White's
impairment using the American Medical Association's
Guides. He indicated Mr. White had gait derangement
for which he was using a cane and right knee brace, both on a
full time basis. Using Table 36-F of the Guides, Dr.
Chand assessed 30% whole person impairment. He made no
mention of impairment for muscle atrophy. For range of motion
he assessed 4% impairment. He recommended 8% impairment for
right knee arthritis which he described as mild. Per Table
64, he assessed 5% impairment for Mr. White's patella
fracture. Dr. Chand also assessed 7% impairment for minor
loss of function on dorsiflexion of the ankle due to the
constant use of a brace. His total combined recommendation
was 36% impairment.
7, 2014, Mr. White requested that the Office of Judges take
judicial notice of a February 19, 2013, Order which added
loose body in knee and lesion in lateral peroneal nerve as
compensable components of the claim. He also asked that the
March 21, 2013, Order authorizing arthroscopic surgery for
the right knee, peroneal nerve entrapment release, and
physical therapy be recognized.
Stoll, M.D., performed a medical record review on March 12,
2015, in which he noted that Mr. White was examined on
January 19, 1986, and diagnosed with a right knee sprain. Dr.
Stoll found per West Virginia Code of State Rules §
85-20 (2006) that the claim was beyond the treatment
guidelines by twenty-nine years. He believed the present
right knee issues were due to the natural aging process. He
stated that loose bodies in the knee can be caused by
degenerative joint disease. Based on Dr. Chand's
operating note, Dr. Stoll concluded Mr. White has a moderate
tricompartmental chondromalacia grade three, which would be a
normal finding in a man of his age. He further concluded that
the lack of medical records and treatment since 1986 leads to
the conclusion that Dr. Chand's assumption that Mr.
White's condition is work related is clearly not
medically plausible or supported by the evidence.
July 16, 2015, independent medical evaluation, Michael
Condaras, M.D., concluded that Mr. White's knee flexion
was 112 degrees on the right. His range of motion was normal
per the American Medical Association's Guides.
Dr. Condaras concluded Mr. White sustained a sprain/strain to
the right knee twenty-nine years prior. He had returned to
full duty work in July of 1986 and did not seek further
treatment until 2009. Any issues in the right knee are
related to the normal aging process.
August 6, 2015, letter, Dr. Chand challenged aspects of Dr.
Condaras's report, indicating that there are thirteen
categories of impairment in the American Medical
Association's Guides which if not inclusive,
need to be combined. In a second letter dated September 11,
2015, Dr. Chand stated that there are thirteen categories for
determining impairment under the Guides. Only the
highest of the non-inclusive ones should be given and then
combined. Based on his reading of Dr. Condaras's report,
he only considered one aspect of the categories. Dr. Chand
challenged Dr. Condaras's findings. He noted that Dr.
Condaras did not evaluate Mr. White's peroneal nerve. He
stated that the peroneal nerve injury was not an integral
part of range of motion, loss of limb, or atrophy of the
thigh. Therefore, the gait derangement method should be
combined with the peroneal nerve injury.
letter dated October 14, 2015, Dr. Condaras responded to Dr.
Chand's correspondence. He indicated that he saw no
atrophy or muscle weakness in the knee or any evidence of
gait derangement which would be attributable to Mr.
White's 1986 injury. Sensory testing showed some
diminished sensation of an inconsistent pattern. Dr. Condaras
agreed with Dr. Grady that there was 3% impairment for the
peroneal nerve. He stated that the only viable category for
rating Mr. White's impairment was range of motion.
Office of Judges affirmed the claims administrator's
grant of a 4% permanent partial disability award on March 2,
2016. It found that the issue at hand is with regard to the
technique employed to determine Mr. White's right knee
impairment. The only medical report suggesting that he should
receive an impairment rating for gate derangement is that of
Dr. Chand. Dr. Chand awarded 30% impairment for gait
derangement based on Mr. White's assertion that he uses a
short leg brace and cane full-time. The Office of Judges
found that the Americana Medical Association's
Guides state that for moderate severity, if the
claimant requires the use of a cane or a crutch and short leg
brace, 30% impairment is appropriate. However, the Office of
Judges determined that while the short leg brace was
authorized under the claim, there is no indication a cane was
ever authorized. Also, Mr. White provided no report by Dr.
Chand recommending the use of a cane. Therefore, the sole
basis for Dr. Chand's recommendation of 36% impairment is
Mr. White's assertion that he requires a brace and cane
full time. Since the record contains no such representation
from a physician, he was found to not fall into the moderate
range of impairment and Dr. Chand's report was determined
to be unreliable. The Office of Judges further determined
that he received minimal treatment for his 1986 injury until