MARK A. MINOR, Claimant Below, Petitioner
WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Employer Below, Respondent
Appeal No. 2051477) (Claim No. 2013006378)
Mark A. Minor, by William C. Gallagher, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. West Virginia Division of Motor Vehicles, by
Lisa Warner Hunter, its attorney, filed a timely response.
issue on appeal is the amount of Mr. Minor's permanent
partial disability award. On August 17, 2015, the claims
administrator granted a 10% permanent partial disability
award. The Office of Judges reversed the claims
administrator's decision in its July 28, 2016, Order and
granted a 20% permanent partial disability award. The Order
was reversed by the Board of Review on December 27, 2016. The
Board of Review reinstated the 10% permanent partial
disability award. 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 that the Board of Review's decision is
clearly wrong based upon the evidentiary record. This case
satisfies the "limited circumstances" requirement
of Rule 21(d) of the Rules of Appellate Procedure and is
appropriate for a memorandum decision rather than an opinion.
Minor, a state inspector, injured his right knee on September
4, 2012, when he rear-ended another vehicle. Continued
problems with the right knee led to Mr. Minor undergoing a
total right knee arthroplasty on February 4, 2015. The pre-
and post-operative diagnosis was severe right knee
degenerative joint disease. On February 18, 2004, years prior
to the injury, a right knee x-ray revealed mild narrowing of
the patellofemoral joint space with marginal osteophytes,
consistent with mild degenerative changes.
August 11, 2015, Prasadarao Mukkamala, M.D., performed an
independent medical evaluation. Mr. Minor complained of right
knee pain, right hip pain, and back pain. Dr. Mukkamala noted
that Mr. Minor sustained a fracture of the right distal femur
on September 4, 2012, which was treated with internal
fixation. When he developed post-traumatic arthrosis of the
right knee, a total knee arthroplasty was performed in
February of 2015. He also noted Mr. Minor had a history of a
prior fracture of the right knee in four places and a history
of right knee pain dating back to 1993. Dr. Mukkamala
diagnosed a fracture of the right distal femur resulting in
post-traumatic knee arthrosis eventually treated with a total
knee replacement arthroplasty. He assessed 20% whole person
impairment. Due to the findings on the right knee x-ray
performed on February 18, 2004, Dr. Mukkamala apportioned 10%
of the assessed impairment to the pre-existing arthrosis and
the other 10% to the September 4, 2012, injury.
on Dr. Mukkamala's report, the claims administrator
granted a 10% permanent partial disability award on August
17, 2015. The Office of Judges reversed the claims
administrator on July 28, 2016, and awarded a 20% permanent
partial disability award. It noted that in an October 16,
2014, report, Dr. Mukkamala found that the need for the total
knee replacement arthroplasty was due to the work injury. It
also found that Dr. Mukkamala's reduction of the 20%
impairment to 10% impairment based on a right knee x-ray
performed on February 18, 2004, was improper.
Board of Review reversed and vacated the Order of the Office
of Judges and reinstated the claims administrator's award
of 10% permanent partial disability on December 27, 2016. It
found Mr. Minor was entitled to a 10% permanent partial
disability award based on the case law and Dr.
Mukkamala's impairment evaluation. The Board of Review
determined "the Commissioner is to make permanent
partial disability awards solely on the basis of the
doctor's impairment evaluation". Repass v.
Workers' Compensation Division, 212 W.Va. 86, 569
S.E.2d 162 (2002) It further determined that selecting
portions of findings from a medical report to use does not
form a reliable basis for assessing impairment. See Baria
v. Capital Beverage Company, No. 15-0056, 2015 WL
5883444 (W.Va. Oct. 7, 2015)(memorandum decision).
review, we find the Board of Review erred in reversing the
Office of Judges' Order. Dr. Mukkamala opined that the
need for the total knee replacement arthroplasty was due to
the work injury. He assessed Mr. Minor's impairment
according to Table 66 on page 88 of the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993), which is titled
"Rating Knee Replacement Results". The 20%
permanent impairment rating he assessed was due to the knee
replacement arthroplasty. While the 2004 x-ray may have shown
degenerative changes, those changes did not appear to affect
Mr. Minor's ability to work or his activities of daily
living. Therefore, we agree with the Office of Judges'
finding that Dr. Mukkamala's apportionment of the
impairment rating due to the 2004 x-ray was improper and find
Mr. Minor is entitled to an award of 20% permanent partial
foregoing reasons, we find that the decision of the Board of
Review is the result of a material misstatement or
mischaracterization of the evidentiary record. Therefore, the
decision of the Board of Review is reversed and remanded with
instructions to reinstate the Office of Judges' Order
awarding 20% permanent partial disability.
CONCURRED IN BY: Justice Robin J. Davis, Justice Margaret L.
Workman, Justice Menis E. Ketchum
DISSENTING: Chief Justice Allen H. Loughry II ...