Appeal No. 2052329 Claim No. 2012027687
Murray American Energy, Inc., by Denise D. Pentino and Aimee
M. Stern, its attorneys, appeals the decision of the West
Virginia Workers' Compensation Board of Review. Dustin
Harshey, by Linda Garrett, his attorney, filed a timely
issue on appeal is the amount of permanent partial disability
award to which Mr. Harshey is entitled. The claims
administrator granted a 39% award on November 10, 2015. The
Office of Judges reversed the decision in its November 15,
2017, Order and instead granted a 49% permanent partial
disability award. The Order was affirmed by the Board of
Review on June 29, 2018. 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
Harshey, a coal miner, was injured in the course of his
employment on January 20, 2012, when he was run over by a ram
car. The Employee's and Physician's Report of Injury
indicates Mr. Harshey suffered a break to his right leg, a
head injury, nine broken ribs, a damaged spleen, a dislocated
hip, and a broken pelvis. The claim was held compensable for
the following conditions: concussion, contusion of lung
without open wound into thorax, traumatic pneumothorax,
sacrum/coccyx fracture, post-traumatic stress disorder, major
depressive disorder, fracture of the lumbar spine with spinal
cord injury, closed fracture of four ribs, femur fracture,
fracture of the pubis, tibia/fibula fracture, spleen injury
with open wound into the cavity, medial cartilage or meniscus
tear of the knee, and traumatic arthropathy of the lower leg.
Dean, M.D., performed a neuropsychological evaluation of Mr.
Harshey on May 1, 2013. Dr. Dean noted that Mr. Harshey had
undergone twelve to fourteen orthopedic surgeries as a result
of the compensable injury and was not finished. Mr. Harshey
reported that he has ongoing pain. Dr. Dean opined that the
combination of impact, crush/pressure, and possible hypoxia
resulted in mild to moderate traumatic brain injury. She
noted decreased learning efficiency and mild memory problems.
Dr. Dean stated that emotionally, Mr. Harshey is well
adjusted. She found him to be at maximum medical improvement
neurologically and stated that he fell at the high end of
impairment between 8 and 14% impairment. Kari Beth Law, M.D.,
performed a psychiatric independent medical evaluation on May
1, 2013, in which she diagnosed major depressive episode,
resolved; post-traumatic stress disorder, resolved; and
cognitive disorder secondary to traumatic brain injury. She
found that Mr. Harshey had reached maximum medical
improvement for his psychiatric diagnoses. She recommended
cognitive therapy due to continued issues with memory,
planning, sequencing, and visual perception. The claims
administrator granted a 14% permanent partial disability
award on March 7, 2014.
February 14, 2014, treatment note, Richard Bonfiglio, M.D.,
noted that Mr. Harshey reported continuous right knee pain,
throbbing in the left foot, and numbness in the left leg. He
diagnosed pubic symphysis diathesis; abnormal gait pattern;
decreased balance; left lower limb weakness and sensory loss;
probable post-traumatic stress disorder; impaired cognition
including decreased attention, concentration, and memory;
impaired performance of activities of daily living; chronic
right knee pain; chronic left foot pain; chronic lower back
pain syndrome; and bilateral knee ligamentous damage. Mr.
Harshey continued to have significant functional impairments
as well as chronic pain issues. Dr. Bonfiglio also noted
psychological issues stemming from the compensable injury in
the form of depression, anxiety, post-traumatic stress
disorder, and anger management issues.
capacity evaluation was performed by Leonard Matheson, Ph.D.,
on July 8, 2014. Dr. Matheson found that Mr. Harshey's
functional limitations restrict him to light physical demand
level work. Though he has been found to have reached maximum
medical improvement, Dr. Matheson found that Mr. Harshey
still requires medical and occupational rehabilitation. He
noted that Mr. Harshey exhibited high motivation but that he
could not realistically compete for employment.
Soulsby, M.D., performed an independent medical evaluation on
August 25, 2015, in which he found that Mr. Harshey had
reached maximum medical improvement. Dr. Soulsby stated that
he would continue to have arthritic symptoms that affect his
lower back, right knee, and hip. He also had left dropfoot.
Dr. Soulsby also opined that Mr. Harshey would continue to
require treatment for his long term problems. Using the
American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed.
1993), Dr. Soulsby assessed 11% spine impairment,
representing 5% from Table 75, 3% from Table 81, and 1% from
Table 82. For the pelvis he assessed 15% for the fracture
with displacement and 10% for the sacrum fracture for a total
pelvic impairment of 24%. For the left hip fracture, right
femur, right knee, and right tibia, Dr. Soulsby found 0%
impairment. Lastly, Dr. Soulsby assessed 10% impairment from
Table 93 for neurological injury to the left leg. His total
combined impairment rating was 39%. Based on Dr.
Soulsby's report, the claims administrator granted a 39%
permanent partial disability award on November 10, 2015.
Walker, M.D., performed an independent medical evaluation on
January 20, 2017, and assessed 54% total impairment. For the
lumbosacral spine, he found 6% from Tables 81 and 82 of the
American Medical Association's Guides and 15%
from Table 75. These combined for 20% impairment. He placed
Mr. Harshey in Lumbar Category II from West Virginia Code of
State Rules § 85-20-C (2006) and reduced the impairment
to 8% accordingly. For the pelvis, Dr. Walker found 10%
impairment for the sacrum fracture and 15% for a separated
symphysis pubis. These combined for 24% impairment. For the
left hip, Dr. Walker assessed 10% impairment from Table 40 of
the American Medical Association's Guides and 30% from
Table 68. These combined and reduced to 15% whole person
impairment. Dr. Walker found 36% lower extremity impairment
representing 20% for the right hip and 20% for the right
knee. This converted to 14% whole person impairment. Lastly,
he assessed 6% impairment for the central nervous system.
Office of Judges reversed the claims administrator's
grant of a 39% permanent partial disability award and granted
a 49% permanent partial disability award in its November 15,
2017, Order. Regarding the lumbar spine, the Office of Judges
found that Dr. Walker assessed 8% impairment while Dr.
Soulsby found 11%. However, Dr. Soulsby failed to use West
Virginia Code of State Rules § 85-20 to make his
impairment recommendation. Dr. Soulsby also failed to
complete the required low back examination form. Both Drs.
Walker and Soulsby found 24% pelvic impairment.
left lower extremity, the Office of Judges found that Dr.
Soulsby assessed 10% impairment. Dr. Walker also found 15%
impairment, however, he erred in his calculation of
impairment. Dr. Walker accidentally included his assessment
of 10% impairment for hip flexion twice in his calculations.
right lower extremity, Dr. Soulsby found 0% impairment. Dr.
Walker, however, found 14% impairment. The Office of Judges
found that Dr. Walker noted that Mr. Harshey suffered a
broken femur, tibia, and fibula and had undergone multiple
operations, including having pins installed in the femur and
tibia. Also, Mr. Harshey had a right knee arthroscopy with
reconstruction of the anterior cruciate ligament. The Office
of Judges found Dr. Walker's assessment to be the most
reliable as it was supported by the multiple injuries and
surgeries to the claimant's right lower extremity.
central nervous system, the Office of Judges found that Dr.
Soulsby made no recommendation while Dr. Walker assessed 6%
impairment under Table 2, Mental Status Impairment, of the
American Medical Association's Guides found on
page 142. The Office of Judges noted that Mr. Harshey was
previously granted a 14% permanent partial disability award
based on Dr. Law's psychiatric independent medical