Appeal No. 2052219) (Claim No. 2014016156)
Jack Clay, by Edwin H. Pancake, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Chojnacki Construction, Inc., by Steven Wellman,
its attorney, filed a timely response.
issue on appeal is the amount of Mr. Clay's permanent
partial disability. On October 10, 2014, the claims
administrator granted Mr. Clay a 3% permanent partial
disability award. The Workers' Compensation Office of
Judges affirmed the claims administrator's decision in a
Final Order dated September 15, 2017. This appeal arises from
the Board of Review's February 26, 2018, Order, which
affirmed the decision 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
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
Clay, an equipment operator, was injured on November 13,
2013, when he was at the back of his truck when another truck
hit him and pinned his right lower extremity between the two
trucks. Mr. Clay underwent a variety of tests and treatment
for his injuries, including an MRI performed at Cabell
Huntington Hospital on February 21, 2014. The MRI revealed
evidence of a grade 2 quadriceps strain injury and a grade 2
sprain of the fibular collateral ligament. Mr. Clay was
examined by Stanford Israelson, M.D., with Marshall Health,
on May 30, 2014. Dr. Israelson noted that Mr. Clay was
experiencing right knee pain associated with tingling and
weakness with occasional radiation down his leg. Dr.
Israelson disagreed with the findings of the MRI. Mr.
Clay's knee flexion and extension was measured as 4.
Dr. Israelson ordered six weeks of physical therapy for the
treatment of Mr. Clay's right quad and hamstring
3, 2014, the claims administrator approved additional
components of the claim that included sprain and strain of an
unspecified site of the knee and leg, contusion of the thigh,
and motor vehicle collision with pedestrian injury. Mr. Clay
continued treatment and participated in physical therapy and
a home exercise program for his patellofemoral symptoms.
Physical Therapist Michael Kennedy submitted a report dated
June 24, 2014, that noted Mr. Clay's right knee range of
motion was found to be 0 to 130 degrees. His quadriceps
strength was noted to be 5/5. Mr. Kennedy found that Mr. Clay
was ambulating while bearing equal weight. No additional
physical therapy was scheduled.
15, 2014, Mr. Clay was evaluated by John J. Jasko, M.D., who
is with Marshall Orthopedics. Dr. Jasko found full range of
motion of the right knee and noted tenderness along the
medial joint line. Although slight weakness was found in the
quad on the right, Dr. Jasko concluded that Mr. Clay was not
in need of surgical intervention. Dr. Jasko recommended that
Mr. Clay complete his scheduled physical therapy followed by
a functional capacity evaluation.
Padmanaban, M.D., provided an independent medical evaluation
report dated September 18, 2014. In his report, Dr.
Padmanaban found Mr. Clay to be at maximum medical
improvement, as far as the right thigh contusion and right
knee strain were concerned. Although Dr. Padmanaban found
that Mr. Clay still had some dysesthesia along the lateral
femoral cutaneous nerve distribution, he concluded that the
total impairment calculated by combining the impairments from
right hip, right knee, and lateral femoral cutaneous nerve
dysesthesia would entitle Mr. Clay to 3% whole person
upon Dr. Padmanaban's independent medical evaluation
report, the claims administrator closed Mr. Clay's claim
for temporary total disability benefits in an Order dated
October 9, 2014. On October 10, 2014, the claims
administrator granted Mr. Clay a 3% permanent partial
disability award. Mr. Clay protested the claims
administrator's 3% award.
Clay was evaluated by Bruce A. Guberman, M.D., on January 20,
2015. Dr. Guberman concluded that Mr. Clay had reached his
maximum medical improvement. Dr. Guberman's impression
was status post soft tissue injury to the right thigh with
hermatoma status post aspiration of hematoma times two,
persistent symptomatic scarring, persistent sensory loss, and
chronic post traumatic right knee strain. Dr. Guberman found
that Mr. Clay suffered a crush type injury to his right leg,
especially at the right knee and the medial right thigh, when
his right leg was crushed between two trucks on November 13,
2013. Although Mr. Clay had developed hematoma following the
injury, Dr. Guberman did not find evidence of hematoma during
examination. Dr. Guberman found that Mr. Clay has a scar that
is symptomatic, as well as sensory loss over the anteromedial
aspect of the right knee. Dr. Guberman also found weakness of
extension of the right knee. Using the American Medical
Association's, Guides to the Evaluation of
Permanent Impairment (4th ed. 1993), Dr.
Guberman concluded that Mr. Clay had 7% whole person
impairment. Because Mr. Clay had previously been granted a 3%
award for his injury, Dr. Guberman recommended an additional
4% permanent partial disability impairment award.
Clay was evaluated by Prasadarao Mukkamala, M.D., on
September 9, 2015. In his independent medical evaluation
report dated September 17, 2015, Dr. Mukkamala found that Mr.
Clay had returned to full duty work without restrictions and
was at maximum medical improvement. Dr. Mukkamala found that
Mr. Clay was able to ambulate on a straight line without any
problems. He also was able to ambulate on heel and toes, but
with difficulty. Mr. Clay presented with some tenderness over
his right quadriceps muscles in the right thigh area. Right
knee range of motion showed flexion of 130 degrees, and
extension was 0 degrees. The patellar compression test was
negative for any patellofemoral problems. Dr. Mukkamala
concluded that Mr. Clay's injury would have moderate
impact on his everyday work activities and daily living.
Using the Guides, Dr. Mukkamala recommended 3% whole
person impairment for his right thigh, right knee injury, and
right hip pain. On October 3, 2016, Dr. Mukkamala submitted
an addendum report following the addition of the right knee
as a listed compensable condition in the claim. Dr. Mukkamala
examined Mr. Clay's right knee at the time of his
evaluation on September 9, 2015, and opined that Mr.
Clay's range of motion was within normal limits. In his
addendum report, Dr. Mukkamala stated that there were no
ratable conditions for the knee, and Mr. Clay was only
entitled to a rating of 3% whole person impairment.
September 15, 2017, the Office of Judges affirmed the 3%
permanent partial disability award granted by the claims
administrator. Mr. Clay protested the claims
administrator's decision and argued that he was entitled
to an additional 4% permanent partial disability award based
upon the recommendation of Dr. Guberman. In his report, Dr.
Guberman attributed impairment to Mr. Clay's continued
weakness of the extension of the right knee. Dr. Guberman was
the only physician to find impairment for extension weakness.
Drs. Mukkamala and Padmanaban did not find issues with
weakness of extension of the right knee. Following physical
therapy with Michael Kennedy, PT, Mr. Clay's leg was
re-assessed on June 6, 2014, and revealed 0-130 degrees of
right knee motion and 5/5 quad tone. The Office of Judges
reasoned that Mr. Kennedy's assessment, combined with
there being no finding made by Dr. Padmanaban or Dr.
Mukkamala that Mr. Clay has weakness of extension of the
right knee, rendered Dr. Guberman's finding of impairment
for weakness of extension of the right knee is unpersuasive.
Ultimately, the Office of Judges concluded that Mr. Clay
failed to show that he is entitled to a greater permanent
partial disability award. The Board of Review adopted the
findings of fact and conclusions of law of the Office of
Judges and affirmed its Order on February 26, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. The
preponderance of the evidence indicates that Mr. Clay is only
entitled to a 3% permanent partial disability award.
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 ...