Appeal No. 2052510) (Claim No. 2016010165)
David Townsend, by Edwin H. Pancake, his attorney, appeals
the decision of the West Virginia Workers' Compensation
Board of Review. Spartan Mining Company, by Sean Harter, its
attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
in the claim. The claims administrator granted Mr. Townsend a
0% award on September 1, 2016. The Office of Judges affirmed
the Self-Insured Employer's decision by Order dated
January 18, 2018. This appeal arises from the Board of
Review's Final Order dated June 29, 2018, in which the
Board affirmed the decision of the Office of Judges.
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
Townsend signed an Employees' and Physicians' Report
of Occupational Injury or Disease on October 12, 2015, in
which he stated that he injured his head and neck when his
shuttle car hit a rock and he hit his head into the canopy of
the mine. He was treated for his injuries at Logan Regional
Medical Center where a CT scan detected posterior disc
osteophyte complexes resulting in canal stenosis but no acute
findings. He was diagnosed with a concussion, head injury,
and cervical sprain. Mr. Townsend was also referred to
Dolores Santamaria, M.D. Dr. Santamaria's office records
dated October 13, 2015, through December 2, 2016, noted Mr.
Townsend's continued daily headaches, neck pain, nausea,
and blurred vision. By Order dated November 10, 2015, the
Self-Insured Employer held the claim compensable for a sprain
of ligaments of the cervical spine, and a concussion with
loss of consciousness of 30 minutes or less.
of Mr. Townsend's cervical spine was taken at Logan
Regional Medical Center on February 9, 2016. Robert Cure,
M.D., compared the MRI to the cervical CT dated October 12,
2015. Dr. Cure noted that testing detected multilevel
degenerative disc disease with areas of acquired central
canal and neural foraminal narrowing.
Townsend underwent a neurosurgical consultation with Panos
Ignatiadis, M.D., on April 12, 2016. After reviewing Mr.
Townsend's history, Dr. Ignatiadis's assessment was
cervical spine stenosis. He recommended conservative
treatment, including physical therapy and possible trigger
point injections. Mr. Townsend was also referred to
chiropractic treatment and physical therapy 2 or 3 times per
week for a total of 12 sessions.
Lee Bailey, M.D., provided an independent medical evaluation
report dated July 26, 2016. In her report, Dr. Bailey noted
Mr. Townsend's chief complaint as being constant neck
pain with pain worsening with cervical flexion. He also
complained of headaches that occurred twice daily. Following
a physical examination and review of previous reports, Dr.
Bailey stated that Mr. Townsend has the diagnoses consisting
of history of cervical strain and concussion, both of which
have long since resolved and are not responsible for his
current complaints. Dr. Bailey stated that Mr. Townsend's
complaints are out of proportion to his stated mechanism of
injury, unremarkable diagnostic studies, and benign physical
examination findings. It was noted that neither Dr.
Santamaria nor Dr. Ignatiadis documented any objective
abnormal neurological findings attributable to Mr.
Townsend's compensable injury. Dr. Bailey concluded that
Mr. Townsend reached his maximum medical improvement, and he
was not in need of additional treatment. She also concluded
that he has no impairment as a result of the injuries he
sustained at work on October 12, 2015.
Order dated September 1, 2016, the Self-Insured Employer
granted Mr. Townsend a 0% permanent partial disability award.
The Self-Insured Employer's decision was based upon Dr.
Bailey's recommendation. Mr. Townsend protested the
Self-Insured Employer's decision.
Townsend was examined by Bruce A. Guberman, M.D., on February
27, 2017. Dr. Guberman diagnosed Mr. Townsend with chronic
post-traumatic strain of the cervical spine and
post-concussive headaches. After determining that Mr.
Townsend reached his maximum degree of medical improvement,
Dr. Guberman concluded that he falls under Category II,
Subheading B for the cervical spine injury for a 4%
impairment rating of the whole person under the American
Medical Association's Guides to the Evaluation of
Permanent Impairment (4th ed. 1993). Dr.
Guberman found 1% impairment for range of motion
abnormalities in flexion and extension of Mr. Townsend's
cervical spine. Dr. Guberman also recommended 1% impairment
for range of motion abnormalities in lateral flexion of the
cervical spine. In addition, he recommended 2% impairment for
range of motion abnormalities in rotation of the cervical
spine. The impairment ratings of the cervical spine were
combined for a total of 4% whole person impairment. Utilizing
the Combined Values Chart of the Guides, Dr.
Guberman found a total of 8% whole person impairment for the
cervical spine. In regard to Mr. Townsend's headaches,
Dr. Guberman opined 1% impairment for post-concussive
headaches. Dr. Guberman combined the 8% whole person rating
for the cervical spine injury with the 1% impairment of the
whole person for headaches for a total of 9% impairment for
Mr. Townsend's injuries. Dr. Guberman concluded that Mr.
Townsend is entitled to an additional 9% impairment of the
whole person for his injuries.
B. Mukkamala, M.D., evaluated Mr. Townsend on September 20,
2017, and authored a report for the employer dated September
21, 2017. After examining Mr. Townsend, Dr. Mukkamala
diagnosed cervical strain and concussion. Dr. Mukkamala noted
that Mr. Townsend had prior neck problems, as well as a prior
neck injury from a motor vehicle accident on August 12, 2014.
Dr. Mukkamala opined 0% impairment for Mr. Townsend's
cervical spine. He noted that the range of motion in Mr.
Townsend's spine was normal, and that although one could
argue that Mr. Townsend had 4% whole person impairment for
degenerative disc disease, such disease is pre-existing and
should not be rated in this claim. With respect to Mr.
Townsend's headaches, Dr. Mukkamala recommended 0% whole
person impairment because Mr. Townsend suffered from
headaches prior to the compensable injury of October 12,
2015, and the headaches had not changed after the date of
injury. Dr. Mukkamala disagreed with Dr. Guberman's 9%
whole person impairment rating for multiple reasons. Dr.
Mukkamala stated that Dr. Guberman erroneously failed to
attribute any of Mr. Townsend's impairment to
pre-existing neck problems. Dr. Mukkamala also found normal
range of motion in Mr. Townsend's cervical spine and was
concerned whether Dr. Guberman knew about the prior motor
vehicle accident in 2014. Dr. Mukkamala disputed Dr.
Guberman's 1% whole person impairment rating for
headaches, as there was no difference in Mr. Townsend's
headaches before and after the compensable injury.
Order dated January 18, 2018, the Office of Judges affirmed
the Self-Insured Employer's Order dated September 1,
2016, which granted Mr. Townsend no permanent partial
disability award. The Office of Judges determined that Dr.
Guberman's recommendation is unreliable. The Office of
Judges found that Dr. Guberman stated that Mr. Townsend
reported that he had no prior symptoms related to his neck
before his compensable injury. However, the evidence
indicates that Mr. Townsend has a history of neck pain and
headache which predates his compensable injury of October 12,
2015. Records from Chapmanville Family Chiropractic dated
from June 23, 2014, through December 30, 2014, document
treatment for Mr. Townsend's neck pain and cervical
subluxation. Also, records from Logan Regional Medical Center
dated August 12, 2014, detail an automobile accident where
Mr. Townsend was rear-ended, and thereafter, he complained of
neck pain. The Office of Judges found Dr. Guberman's
assessment to be unreliable because his opinion failed to
take into consideration Mr. Townsend's significant
cervical history. Regarding the 1% impairment rating
recommended by Dr. Guberman, the Office of Judges found that
Mr. Townsend suffered from headaches prior to his compensable
injury and had a history of migraines. Because Dr.
Guberman's report was found to be unreliable, the Office
of Judges concluded that Mr. Townsend submitted no reliable
evidence indicating a greater impairment than the 0% award
granted. The Self-Insured Employer's award of 0% on
September 1, 2016, was affirmed. The Board of Review adopted
the findings of fact and conclusions of the Office of Judges
and affirmed its Order on June 29, 2018.
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. Three
physicians rendered impairment ratings in this claim. Drs.
Bailey and Mukkamala both concluded that Mr. Townsend has 0%
whole person impairment from his compensable injury. Dr.
Guberman recommended a 9% award, but his report was found to
be unreliable by the Office of Judges. Mr. Townsend's
pre-existing neck condition and history of headaches are
clearly established by his medical records. Because Dr.
Guberman's assessment of Mr. Townsend's impairment is
not reliable because he failed to consider Mr. Townsend's
pre-existing conditions, the record supports the Board of
Review's decision. Mr. Townsend has failed to establish
that he is entitled to any greater permanent partial
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 ...