Appeal No. 2051894) (Claim No. 2007213766)
Barry Lucas, by Edward G. Atkins, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Performance Coal Company, by Sean Harter, its
attorney, filed a timely response.
issue on appeal is permanent partial disability. On July 1,
2015, the claims administrator held that Mr. Lucas had been
fully compensated by prior awards. The Office of Judges
affirmed the decision in its March 24, 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
Lucas, a belt maintenance man, injured his lower back in the
course of his employment on December 1, 2006, while lifting a
belt roller. Prior to that injury, Mr. Lucas has a long
history of back injuries. On November 6, 1985, x-rays of the
thoracic spine showed compression fractures of T12 and T10.
It was noted that Mr. Lucas sustained a substantial injury
for which he eventually received a 25% permanent partial
disability award for the thoracic spine. He underwent a
spinal fusion on November 24, 1987.
independent medical evaluation was performed in the instant
claim by Joseph Grady, M.D., on March 31, 2009. Dr. Grady
found 0% thoracic impairment and 25% lumbar impairment
attributable to the compensable injury. Mr. Lucas was granted
a 25% permanent partial disability award for the lumbar spine
on May 21, 2009.
Mir, M.D., performed an independent medical evaluation on
April 27, 2015, in which he found that Mr. Lucas had reached
maximum medical improvement. Dr. Mir stated that after a
spinal fusion, it is common for degenerative changes to
develop above and below the area of the spinal fusion. He
stated that Mr. Lucas had developed significant degenerative
disc disease at L2-3 and some osteoporosis. Dr. Mir noted
that Mr. Lucas had a spinal cord stimulator placed but still
had persistent symptoms. He then underwent additional fusion
from L2 to S1. Dr. Mir diagnosed compression fracture of the
L3 vertebra due to the 2006 compensable injury resulting in a
fusion from L2-S1. He also diagnosed thoracic sprain/strain
superimposed on preexisting spinal fusion due to the 1985
injury. Dr. Mir assessed 17% impairment according to Table 75
of the American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed. 1993). For
range of motion loss he found 30.5% which adjusted to 28% per
West Virginia Code of State Rules § 85-20 (2006). For
the thoracic spine he found 5% range of motion impairment.
Mr. Lucas qualified for 2% impairment per Table 75. Dr. Mir
then placed Mr. Lucas in Thoracic Category II for 5%
impairment under West Virginia Code of State Rules §
85-20. He also recommended an additional 3% impairment for
the application and removal of a spinal cord stimulator. His
total impairment recommendation was 34%.
April 22, 2016, Prasadarao Mukkamala, M.D., performed an
independent medical evaluation in which he diagnosed thoracic
sprain with history of prior T12 fracture, treated with T9-L2
fusion; disc displacement; and status post L1-S1 fusion. For
the lumbar spine, he found 17% impairment under Table 75 and
12% for range of motion loss for a combined total of 27%
impairment. He then placed Mr. Lucas in Lumbar Category IV of
West Virginia Code of State Rules § 85-20 and reduced
the impairment to 23%. For the thoracic spine, he found 8%
impairment per Table 75 and 14% for range of motion loss.
This combined for 23% whole person impairment. After
deducting Mr. Lucas's prior permanent partial disability
award of 25%, Dr. Mukkamala found that Mr. Lucas had 23%
whole person impairment attributable to the compensable
Condaras, M.D., performed a medical review on July 26, 2016,
in which he stated that he reviewed the reports of Drs.
Mukkamala and Mir. He opined that no matter what impairment
was found by Dr. Mir, he should have subtracted the prior 25%
permanent partial disability award. Dr. Condaras believed Mr.
Lucas had been fully compensated for his two back injuries
with awards of 25% for both the thoracic and lumbar spines.
Dr. Condaras opined that Dr. Mukkamala's finding of 23%
lumbar spine impairment was accurate and reliable per the
American Medical Association's Guides. He found
that Dr. Mir's finding of 34% impairment was unreliable
because he placed Mr. Lucas in Category V due to
radiculopathy. He also failed to subtract the prior 25%
permanent partial disability award.
August 24, 2016, Bruce Guberman, M.D., performed an
independent medical evaluation in which he found 19% lumbar
impairment using Table 75 of the American Medical
Association's Guides. Using range of motion
studies, he found 27% lumbar spine impairment. Dr.
Guberman's combined total was 42% impairment. He placed
Mr. Lucas in Lumbar Category V of West Virginia Code of State
Rules § 85-20 and adjusted the rating to 28% impairment
for the lumbar spine. For the thoracic spine, he found that
Mr. Lucas had 2% impairment under Table 75 of the American
Medical Association's Guides. He placed Mr.
Lucas in Thoracic Category II and adjusted the rating to 5%.
Dr. Guberman's combined impairment recommendation was 32%
impairment. In a September 13, 2016, addendum, Dr. Guberman
clarified that his 32% impairment assessment was in addition
to the previous 25% impairment Mr. Lucas sustained due to his
supplemental report dated November 22, 2016, Dr. Mukkamala
found that Dr. Guberman's rating of 32% impairment was
inaccurate. He found that Dr. Guberman did not properly allow
for Mr. Lucas's prior thoracic spine injury. He opined
that Dr. Guberman's impairment, if adopted, would
overcompensate Mr. Lucas and be a duplication of awards.
claims administrator held the claimant had been fully
compensated by prior awards received for the thoracic and
lumbar spines on July 1, 2015. The Office of Judges affirmed
the decision in its March 24, 2017, Order. It found that Drs.
Mir and Guberman failed to appropriately apportion for
preexisting impairment. The Office of Judges determined that
the proper procedure is to evaluate the injured body part as
is, make a recommendation of whole person impairment, then
use West Virginia Code of State Rules § 85-20 to
determine which category the claimant falls in, and finally,
apportion for preexisting impairment. The Office of Judges
found that Dr. Mir, like Dr. Guberman, found Mr. Lucas to
have 5% thoracic impairment after considering the range of
motion model and West Virginia Code of State Rules §
85-20. There is no indication in Dr. Mir's report that he
deducted impairment for Mr. Lucas's prior award.
Additionally, Dr. Mir failed to explain why he recommended an
additional 3% impairment for placement and removal of a
spinal cord stimulator. 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 methodology
for evaluating permanent impairment is to deduct impairment
attributable to preexisting injury from the final whole
person impairment rating. SWVA, Inc. v. Birch, 237
W.Va. 393, 787 S.E.2d 644, 670 (2016). 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. Drs. Mir and Guberman failed to properly apportion
their impairment findings. 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 ...