Appeal No. 2052632. (Claim No. 2012038982)
Craig Atkins, by Reginald D. Henry, his attorney, appeals the
decision of the West Virginia Workers' Compensation Board
of Review. Beckley Raleigh YMCA, by Jillian L. Moore, its
attorney, filed a timely response.
issue on appeal is the amount of permanent partial disability
Mr. Atkins sustained as a result of the compensable injury.
The claims administrator granted a 2% award on September 30,
2016. The Office of Judges affirmed the decision in its
February 23, 2018, Order. The Order was affirmed by the Board
of Review on July 20, 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
Atkins, a grounds keeper, was injured in the course of his
employment on May 11, 2012, when he fell while painting a
soccer field. He sought treatment on May 23, 2012, at
MedExpress and reported that he injured both knees, but only
the right knee was painful. He was diagnosed with a knee
sprain. X-rays of the right knee showed mild degenerative
narrowing in the joint spaces and a small area of
calcification. X-rays of the left knee showed mild narrowing
of the joint spaces. The Employees' and Physicians'
Report of Injury was completed that day and indicates Mr.
Atkins was diagnosed with a right knee sprain after falling
while painting a soccer field. A right knee MRI was performed
on June 25, 2012, and showed early subchondral collapse of
the medial femoral condyle, fluid in the pretibial bursa, and
a complex tear of the medial meniscus. The claim was held
compensable for right knee sprain/strain.
Scott, M.D., performed an independent medical evaluation on
January 28, 2014, in which he diagnosed bilateral
degenerative disease with chondromalacia and a medial
meniscus tear that were both degenerative and preexisting. He
opined that Mr. Atkins had reached maximum medical
improvement and assessed 0% impairment.
Office of Judges' decision dated June 3, 2014, torn
medial meniscus in the right knee was added as a compensable
condition in the claim. The Order also noted that "[i]t
is found that the overall record supports that the claimant
did have a contusion of both knees which resulted in a
compensable injury." Pursuant to the Office of
Judges' Order, right knee torn meniscus was added to the
claim on July 2, 2014. On July 21, 2014, bilateral knee
x-rays showed degenerative changes in the medial compartment
of both knees with joint space narrowing.
Guberman, M.D., performed an independent medical evaluation
on December 11, 2014, in which he diagnosed chronic
posttraumatic strain and contusion of both knees and medial
meniscus tear of the right knee. He opined that Mr. Atkins
had 4% impairment for each knee for a total of 8% impairment.
He further opined that no apportionment was necessary for the
mild degenerative changes seen on x-rays because Mr. Atkins
would have received no impairment based on those findings
prior to the compensable injury.
January 16, 2015, H.R. Fleschner, D.C.C.R.P., performed an
independent medical evaluation in which he diagnosed chronic
posttraumatic strain of the right knee, right medial meniscus
tear, and chronic posttraumatic sprain/contusion of the left
knee. He assessed 4% impairment for each knee. Dr. Fleschner
declined to apportion the impairment because Mr. Atkins had
no preexisting history of knee pain, no medical history of
knee conditions, and he was fully capable of performing his
work duties and activities of daily living prior to the
Mukkamala, M.D., performed an independent medical evaluation
on May 8, 2015, in which he diagnosed bilateral knee
contusions and preexisting degenerative arthrosis of the
knees. He assessed 0% impairment for the compensable injury.
Dr. Mukkamala opined that Mr. Atkins's ongoing complaints
are due to his preexisting arthrosis.
independent medical evaluation on September 28, 2015, Paul
Bachwitt, M.D., diagnosed left knee sprain/strain and right
knee sprain/strain superimposed on preexisting degenerative
changes in both knees. He opined that the right knee meniscal
tear was likely related to the compensable injury and
assessed 0% impairment.
Office of Judges granted a 4% permanent partial disability
award on December 11, 2015. The Board of Review reversed the
decision in its May 11, 2016, Order and remanded the case for
another impairment evaluation because there was no physician
of record that recommended 4% impairment. It also found that
none of the reports of record accurately assessed Mr.
Bailey, M.D., performed an independent medical evaluation on
August 3, 2016, in which Mr. Atkins reported constant pain in
both knees. Dr. Bailey noted that he had swelling and
varicosities in both legs. His range of motion was restricted
by discomfort. Dr. Bailey found that the area seen on x-ray
as showing degenerative joint disease was the same area that
was tender to palpitation on examination. She diagnosed
bilateral knee contusions, possible sprain/strain of both
knees, medial meniscus tear of the right knee, bilateral knee
degenerative joint disease, and osteoarthritis. Dr. Bailey
opined that the contusions, possible sprain/strain to both
knees, and right meniscal tear were all related to the
compensable injury. She determined that Mr. Atkins had
reached maximum medical improvement and assessed 8% right
knee impairment and 4% left knee impairment for a total of
12%. However, she apportioned 10% to preexisting,
noncompensable degenerative joint disease, osteoarthritis,
and obesity. The claims administrator granted a 2% permanent
partial disability award on September 30, 2016.
April 4, 2017, supplemental report, Dr. Guberman stated that
he disagreed with Dr. Bailey's apportionment of 10%
impairment to preexisting conditions. Dr. Guberman opined
that her apportionment was inconsistent with Mr. Atkins's
history of no prior knee symptoms and the fact that he had no
problem performing his work and daily living activities prior
to the compensable injury. Dr. Guberman concluded that ...