REGINA L. CONNER, Claimant Below, Petitioner
PROFESSIONAL IMAGING, INC., Employer Below, Respondent
Appeal No. 2051874) (Claim No. 2015026266)
Regina L. Conner, by Gregory S. Prudich, her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. 
issue on appeal is permanent partial disability. On May 12,
2016, the claims administrator granted an award of 3%
permanent partial disability. The Office of Judges affirmed
the claims administrator's award in its March 13, 2017,
Order. The Order was affirmed by the Board of Review on
August 23, 2017. 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
Conner works in medical billing for Professional Imaging,
Inc. On March 26, 2015, she developed pain in her low back
after she bent over to pull copy paper. An April 17, 2015,
lumbar spine MRI revealed extruded disc material at L4-L5.
Ms. Conner underwent a right L4-L5
laminectomy/foraminotomy/discectomy on June 2, 2015. Prior to
the 2015 compensable injury, Ms. Conner fell in snow in March
of 2011 and injured her back. As a result of that fall, she
underwent an L4-L5 discectomy for which she had residual
symptoms including back pain and left leg numbness.
Ms. Conner's recovery from her June 2, 2015, surgery,
Prasadarao Mukkamala, M.D., performed an independent medical
evaluation. During the evaluation on April 19, 2016, Ms.
Conner complained of low back pain with radiation to the
right gluteal and hip regions, as well as numbness over the
right leg and right foot. Upon examination, Dr. Mukkamala
noted the lumbar spine range of motion measurements were
fairly consistent with repeated attempts. Ms. Conner walked
with a limp on the right side. Dr. Mukkamala diagnosed lumbar
sprain, status-post L4-L5 discectomy performed twice. He
assessed 7% impairment for loss of range of motion according
to Figures 79 and 80 of the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993). He also assessed 1%
impairment for sensory diminution according to Tables 20 and
83 of the American Medical Association's Guides
and 12% impairment for the surgical procedures per Table 75
American Medical Association's Guides. Dr.
Mukkamala combined the ratings to 19% whole person
impairment. He then reduced the 19% to 13% per West Virginia
Code of State Rules § 85-20 (2006). He then opined that
the 13% impairment was due to all of Ms. Conner's back
injuries. Ms. Conner had 10% impairment due to the first
discectomy and residual symptoms. After reducing the 13%
impairment by the 10% due to the prior problems, Dr.
Mukkamala opined that Ms. Conner had 3% impairment for the
compensable injury. Based on his report, the claims
administrator granted a 3% permanent partial disability award
on May 12, 2016.
P. Rupp, M.D., performed an independent medical evaluation on
September 23, 2016. Ms. Conner reported constant right-sided
low back pain with occasional shooting pain to the right
foot. She noted difficulty walking or sitting for long
periods of time. Dr. Rupp assessed 13% impairment for
restricted range of motion, 10% impairment for the
discectomy, and 7% for loss of strength with hip flexion and
hip extension, which combined to 27% whole person impairment.
Dr. Rupp reduced the 27% impairment to 13% impairment
according to West Virginia Code of State Rules § 85-20.
Dr. Rupp then noted Ms. Conner's preexisting injury,
which resulted in her 2011 surgery, and apportioned 8% of the
13% impairment to the preexisting condition for a final
assessment of 5% impairment.
March 13, 2017, Order, the Office of Judges affirmed the
claims administrator's May 12, 2016, decision. The Office
of Judges noted that Drs. Mukkamala and Rupp evaluated the
claimant based upon range of motion. Dr. Rupp deducted the
preexisting impairment from his range of motion findings
prior to his application of West Virginia Code of State Rules
§ 85-20. However, per West Virginia Code § 23-4-9b
(2003), the correct methodology is to deduct impairment
attributable to a preexisting injury from the final whole
person impairment rating. SWVA, Inc. v. Birch, 237
W.Va. 393, 787 S.E.2d 644, 670 (2016). Dr. Mukkamala was the
only physician of record to properly apportion the
impairment. Therefore, the Office of Judges found Dr.
Mukkamala's report to be the most credible evidence of
Ms. Conner's impairment due to the compensable injury.
The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on August 23, 2017.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Per West
Virginia Code § 23-4-9b (2003), the correct method of
assessing impairment when a prior injury exists is to deduct
impairment attributable to the preexisting injury from the
final whole person impairment rating. Therefore, a claimant
must be rated by range of motion and West Virginia Code of
State Rules § 85-20 before prior impairment can be
deducted. Dr. Rupp failed to properly apportion his
assessment of impairment. Dr. Mukkamala's report is
reliable and the Office of Judges' Order was properly
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 Margaret L. Workman, Justice
Robin J. Davis, Justice Allen H. Loughry II, Justice
Elizabeth D. Walker.
DISSENTING Justice ...