Appeal No. 2052721) (Claim No. 2017010065)
Ruth Richards, by William Gerwig III, her attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. American Medical Facilities Management, by
Steven Wellman, its attorney, filed a timely response.
issue on appeal is permanent partial disability. The claims
administrator granted a 1% permanent partial disability award
on March 22, 2017. The Office of Judges affirmed the decision
in its March 14, 2018, Order. The Order was affirmed by the
Board of Review on July 2, 2018.
Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is
mature for consideration. 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
Richards, a certified nursing assistant, was injured in the
course of her employment on October 13, 2016, when she fell.
A cervical CT scan the following day noted that it was
performed due to Ms. Richards falling and hitting her head
and neck the day before. The CT showed mild degenerative
changes but no acute findings. The claim was held compensable
for fracture of the right fibula, head injury, and cervical
Richards was treated by Frederick Pollock, M.D., and on
December 27, 2016, he noted that she was there for follow up
for her broken ankle. She had full range of motion in the
ankle, and x-rays showed that the fibula fracture healed
well. Dr. Pollack recommended two more weeks of physical
therapy. On January 12, 2017, Dr. Pollock again noted full
range of motion and recommended she continue physical
therapy. In a February 3, 2017, treatment note, Aimee Gue,
FNP-C, noted that Ms. Richards reported ankle pain since
October. She stated that she had pain and swelling daily in
her ankle. She had not been able to return to work. Ms. Gue
prescribed a tall boot.
March 17, 2017, Prasadarao Mukkamala, M.D., performed an
independent medical evaluation in which he noted that Ms.
Richards was released to return to work by Dr. Pollock but
was still under the care of Dr. Knapp. He noted the
compensable conditions as right fibula fracture, head injury,
and cervical sprain. Dr. Mukkamala determined that Ms.
Richards had reached maximum medical improvement. Using the
American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed
1993), Dr. Mukkamala assessed 0% impairment for the head
injury. He found 5% impairment for the cervical spine using
range of motion. He placed Ms. Richards in Cervical Category
I of West Virginia Code of State Rules § 85-20-E (2006)
which allows for 0% impairment and adjusted the assessment
accordingly. Dr. Mukkamala found that Ms. Richards had mild
limitation of hind foot range of motion. This amounted to 1%
impairment for the right ankle. His total assessment was
therefore 1% impairment. The claims administrator granted a
1% permanent partial disability award based on his assessment
on March 22, 2017.
Richards was treated by James Thomas, M.D., on April 26,
2017. Dr. Thomas noted that she fractured her ankle in
October of 2016. X-rays taken in March of 2017 showed good
progressive healing. Ms. Richards reported a very low pain
level with standing and walking and no pain on rest. She had
full range of motion of the foot and ankle. Dr. Thomas stated
that her ankle was completely healed.
8, 2017, Bruce Guberman, M.D., performed an independent
medical evaluation in which he assessed 4% impairment for the
right ankle for range of motion abnormalities. For the
cervical spine, he placed Ms. Richards in Category IIB of
Table 75 from the American Medical Association's
Guides for 4% impairment. Cervical range of motion
showed 2% impairment. Dr. Guberman placed Ms. Richards in
Cervical Category II from West Virginia Code of State Rules
§ 85-20-E, which allows for 5-8% impairment. He
therefore adjusted the cervical impairment to 8%. His total
recommended impairment for the compensable injury was 12%.
Bailey, M.D., performed an independent medical evaluation on
November 7, 2017. She found that Ms. Richards had reached
maximum medical improvement. For the cervical sprain, Dr.
Bailey assessed 0% impairment. The cervical range of motion
measurements were pain restricted and not valid. Dr. Bailey
stated that Ms. Richards reported no neck pain at the time of
the examination and only some soreness with certain motions.
Dr. Bailey placed Ms. Richards in Cervical Category I from
West Virginia Code of State Rules § 85-20-E for 0%
impairment. Dr. Bailey stated that there are thirteen models
within the American Medical Association's Guides
for rating lower extremity impairment but Ms. Richards is not
eligible for an impairment under any of them. Her right ankle
range of motion was normal, and Dr. Bailey assessed 0%
impairment. She also found no impairment for the head injury.
March 14, 2018, the Office of Judges affirmed the claims
administrator's grant of a 1% permanent partial
disability award. It found that there are three evaluations
of record. Dr. Mukkamala found 1% impairment, Dr. Guberman
found 12%, and Dr. Bailey found 0%. The Office of Judges
found Dr. Guberman's impairment assessment to be an
outlier in regard to cervical impairment. Ms. Richards has
not been treated for a cervical injury. Dr. Bailey found 0%
cervical impairment but her range of motion measurements were
invalid. The Office of Judges relied on Dr. Mukkamala's
assessment in which he found 0% cervical impairment. All
three evaluators of record found 0% impairment for the
compensable head injury. For the right ankle, Drs. Mukkamala
and Guberman both found 1% range of motion impairment. Dr.
Guberman also found additional impairment for plantar flexion
and dorsiflexion. The Office of Judges found that Ms.
Richards's right ankle was determined to have normal
range of motion by Dr. Pollock on January 12, 2017, and Dr.
Thomas on April 26, 2017. The Office of Judges concluded that
Dr. Guberman's finding of 12% impairment was not
supported by Ms. Richards's treatment and other medical
records. Dr. Baileys' report was also found to be less
credible because she did not find valid range of motion
measurements. Dr. Mukkamala's report and finding of 1%
impairment was determined to be the most reliable of record.
The Board of Review adopted the findings of fact and
conclusions of law of the Office of Judges and affirmed its
Order on July 2, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. The
Office of Judges was not wrong to rely on Dr. Mukkamala's
report. Dr. Guberman's report found impairment well
beyond that of the other evaluators of record, and his
findings are not supported by the evidentiary record. Dr.
Bailey's report failed to find valid range of motion
measurements. Dr. Mukkamala's report was supported by the
evidentiary record and is therefore the most reliable.
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 ...