TRAVIS D. HICKS, Claimant Below, Petitioner
ALPHA CONTRACTING, INC., Employer Below, Respondent
Appeal No. 2051513 (Claim No. 2012010991)
Travis D. Hicks, by Reginald Henry his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Alpha Contracting, Inc., by Katherine Arritt and
Jeffrey Brannon its attorneys, filed a timely response.
issue presented in the instant appeal is Mr. Hicks's
request for a permanent partial disability award. On July 27,
2015, the claims administrator granted Mr. Hicks a 0%
permanent partial disability award for his compensable left
knee sprain. The Office of Judges affirmed the claims
administrator's decision on August 23, 2016. This appeal
arises from the Board of Review's Final Order dated
January 20, 2017, in which the Board 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
Hicks slipped and injured his left knee in the course of his
employment with Alpha Contracting, Inc., on July 5,
2011. Mr. Hicks's claim for
workers' compensation benefits was held compensable for a
left knee sprain on January 4, 2012. He subsequently
underwent three independent medical evaluations for the
purpose of determining the amount of permanent impairment
arising from the compensable injury.
Mukkamala, M.D., performed an independent medical evaluation
on May 21, 2015, and authored a report memorializing his
findings on May 22, 2015. Dr. Mukkamala found no evidence of
instability, crepitus, or deformity upon examination of the
left knee and opined that Mr. Hicks sustained 0% whole person
impairment as a result of the compensable injury. The claims
administrator granted Mr. Hicks a 0% permanent partial
disability award on July 27, 2015, based upon Dr.
Mukkamala's independent medical evaluation.
Guberman, M.D., performed an independent medical evaluation
on January 12, 2016, and authored a report memorializing his
findings on the same date. Dr. Guberman opined that Mr. Hicks
sustained 8% whole person impairment as a result of atrophy
present in the left calf.
David Soulsby, M.D., performed an independent medical
evaluation on July 7, 2016, and authored a report
memorializing his findings on the same date. Dr. Soulsby
opined that Mr. Hicks did not exhibit any range of motion
abnormalities in the left knee. He also found evidence of
bilateral patellofemoral crepitation, which he opined is
unrelated to the compensable injury. Dr. Soulsby did not find
any evidence of atrophy in the left calf, and opined that Mr.
Hicks sustained 0% whole person impairment as a result of the
Order affirming the July 27, 2015, claims administrator's
decision, the Office of Judges held that Mr. Hicks failed to
demonstrate that he sustained any permanent impairment as a
result of the compensable injury. The Board of Review
affirmed the reasoning and conclusions of the Office of
Judges in its decision dated January 27, 2017. On appeal, Mr.
Hicks asserts, per the opinion of Dr. Guberman, that he is
entitled to an 8% permanent partial disability award.
Office of Judges found that only Dr. Guberman, on whose
opinion Mr. Hicks relies, assigned an impairment rating for
atrophy of the left calf. The Office of Judges further found
that both Dr. Mukkamala, who evaluated Mr. Hicks before Dr.
Guberman, and Dr. Soulsby, who evaluated Mr. Hicks after Dr.
Guberman, not only found no evidence of atrophy but also
found that Mr. Hicks sustained 0% whole person impairment as
a result of the compensable injury. Therefore, the Office of
Judges concluded that Dr. Guberman's opinion is not a
credible indication of the amount of Mr. Hicks's whole
person impairment attributable to the compensable injury. We
agree with the reasoning and conclusions of the Office of
Judges, as affirmed by the Board of Review.
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. ...