ANTOINETTE M. BEE, Claimant Below, Petitioner
KANAWHA HOSPICE CARE, INC., Employer Below, Respondent
Appeal No. 2052191 (Claim No. 2016024615)
Antoinette M. Bee, by William B. Gerwig, her attorney,
appeals the decision of the West Virginia Workers'
Compensation Board of Review. Kanawha Hospice Care, Inc., by
H. Dill Battle, III, its attorney, filed a timely response.
issue on appeal is the proper permanent partial disability
award. On August 26, 2016, the claims administrator granted
an 8% permanent partial disability award. The Office of
Judges affirmed the decision in its September 1, 2017, Order.
The Order was affirmed by the Board of Review on December 28,
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
Bee, a nurse, injured her low back on March 20, 2016, when
she bent over to care for a patient and experienced pain in
her left hip. Her claim was held compensable for a sprain of
a ligament of the lumbar spine. An April 18, 2016, lumbar
spine MRI revealed a broad-based disc extrusion at L3-L4
causing narrowing of the lateral recesses.
26, 2016, Prasadarao Mukkamala, M.D., performed an
independent medical evaluation. He noted that Ms. Bee's
main complaint was low back and left leg pain. Ms. Bee's
lumbar spine range of motion measurements were fairly
consistent with repeated attempts. She was able to walk with
a normal gait, walk on her heels and toes, and squat fully.
Dr. Mukkamala diagnosed lumbar sprain and opined that Ms. Bee
had reached maximum medical improvement. He assessed 4% whole
person impairment for loss of range of motion and 7% whole
person impairment for evidence of a disc extrusion for a
combined 11% whole person impairment. Dr. Mukkamala then
classified Ms. Bee under lumbar category II under West
Virginia Code of State Rules § 85-20-C, which has a
range of 5% to 8% impairment. Dr. Mukkamala adjusted the
whole person impairment to 8% based on range of motion. The
claims administrator granted Ms. Bee an 8% permanent partial
disability award on August 26, 2016.
Office of Judges affirmed the claims administrator's
award of 8% permanent partial disability on September 1,
2017. It noted that Ms. Bee argued that Dr. Mukkamala did not
recommend a permanent partial disability award equal to the
assessed whole person impairment, as Dr. Mukkamala reduced
the 11% whole person impairment to 8% whole person impairment
according to West Virginia Code of State Rules §
85-20-C. Ms. Bee also argued that each claimant should be
compensated for his or her impairment, not a preconceived
estimate of impairment based upon diagnosis codes found in
West Virginia Code of State Rules § 85-20-C and D.
Kanawha Hospice Care, Inc., argues that the argument made by
Ms. Bee has been made before, and has been rejected by this
Court. It also argues that the use of impairment tables in
West Virginia Code of State Rules § 85-20-C was
determined to be a proper exercise of rule-making authority
in Simpson v. West Virginia Office of Ins.
Comm'r., 223 W.Va. 495, 678 S.E.2d 1 (2009). The
Office of Judges determined that the Simpson case
was controlling and that Ms. Bee failed to provide a
persuasive legal authority for her argument that Dr.
Mukkamala's reliance on West Virginia Code of State Rules
§ 85-20-C was improper. It found that Ms. Bee failed to
find she was entitled to a greater permanent partial
December 28, 2017, the Board of Review adopted the findings
of fact and conclusions of law of the Office of Judges and
affirmed its Order. After review, we agree with the reasoning
and conclusions of the Office of Judges as affirmed by the
Board of Review. Dr. Mukkamala followed the guidelines for
assessing impairment and reduced the impairment accordingly.
Therefore, the Office of Judges did not err when it relied on
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 Menis E. Ketchum Justice Allen H.