JAMES D. KIDD, Claimant Below, Petitioner
WEST VIRGINIA OFFICE OF INSURANCE COMMISSIONER, Commissioner Below, Respondent and EASTERN ASSOCIATED COAL, LLC, Employer Below, Respondent
Appeal No. 2052919) (Claim No. 2008005336).
James D. Kidd, by Counsel Reginald D. Henry, appeals the
decision of the West Virginia Workers' Compensation Board
of Review ("Board of Review"). The West Virginia
Office of Insurance Commissioner, by Counsel Henry C. Bowen,
filed a timely response.
issue on appeal is whether Mr. Kidd is entitled to an
additional permanent partial disability award in the claim.
The claims administrator granted no additional permanent
partial disability award on May 1, 2017. The Workers'
Compensation Office of Judges ("Office of Judges")
affirmed the claim's administrator's decision on May
15, 2018. This appeal arises from the Board of Review's
Order dated October 19, 2018, in which the Board of Review
affirmed the Order 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
Kidd was employed as a fire boss at Eastern Associated Coal
Corporation's Harris #1 mine. He completed an
Employees' and Physicians' Report of Occupational
Injury or Disease on July 11, 2007, which alleged an injury
to his upper and lower back during the course of his
employment. The nature and body part injured was described as
a hyperextension injury to his low back. Lumbar and thoracic
x-rays were taken on July 17, 2007, at Princeton Community
Hospital. The radiology report indicated findings of:
"[n]o acute fracture or subluxation. Mild degenerative
changes of the lumbar region, particularly the upper and mid
portion with anterior osteophytic formation with suggestion
of mild narrowing of the L2-L3 disc space posteriorly. Lower
lumbar articular facet hypertrophic changes. Impression:
Moderate degenerative changes."
"[t]he thoracic vertebral bodies show a normal
configuration and alignment. Minimal dextroscoliosis of the
upper thoracic spine. Impression: Minimal dextroscoliosis.
Otherwise, normal thoracic spine."
Order dated August 24, 2007, the no-lost-time claim was
approved. The compensable condition covered was lumbar
strain. The thoracic spine was added as a compensable
component on January 14, 2009.
November 9, 2012, Mr. Kidd was examined by Prasadarao B.
Mukkamala, M.D., for an independent medical evaluation. After
reviewing past medical records and examining Mr. Kidd's
thoracic and lumbar spine, Dr. Mukkamala concluded that he
had reached maximum medical improvement. Dr. Mukkamala found
no impairment to the thoracic spine. He placed Mr. Kidd into
Thoracic Category I from the West Virginia Code of State
Rules § 85-20-1E (2006), with an impairment rating of
0%. With regard to the lumbar spine, Dr. Mukkamala concluded
that Mr. Kidd had 12% whole person impairment. He placed Mr.
Kidd into Lumbar Category II of West Virginia Code of State
Rules § 85-20-C, and suggested 8% whole person
impairment. Because Mr. Kidd had previously received a 5%
permanent partial disability award for a prior low back
injury, Dr. Mukkamala modified his final recommendation to be
3% whole person impairment.
Order dated January 10, 2013, Mr. Kidd was granted a 0%
permanent partial disability award for the thoracic spine
based on Dr. Mukkamala's recommendation. Mr. Kidd
protested the claims administrator's decision. In support
of his protest he submitted the report of Bruce A. Guberman,
M.D., who performed an independent medical evaluation of Mr.
Kidd on May 28, 2013. Dr. Guberman concurred with Dr.
Mukkamala that Mr. Kidd had reached his maximum degree of
medical improvement. However, he disagreed with Dr.
Mukkamala's finding of 12% impairment for the lumbar
spine. Dr. Guberman's range of motion findings suggested
that Mr. Kidd has 13% impairment due to his lumbar spine. Mr.
Kidd was placed into Lumbar Category II with 8% impairment.
With regard to the thoracic spine, Dr. Guberman placed Mr.
Kidd into Thoracic Category II with 5% impairment. Dr.
Guberman made a recommendation of 2% impairment for Mr.
Kidd's right shoulder, which had not been included as a
compensable condition. In a supplemental report dated
November 5, 2013, Dr. Guberman acknowledged that the right
shoulder was not compensable under the claim. He also
acknowledged that Mr. Kidd had received a prior 4% permanent
partial disability award for his back injury.
Order dated July 16, 2014, the Office of Judges modified a
prior July 11, 2013, decision by the claims administrator,
and awarded Mr. Kidd 5% permanent partial disability for the
thoracic spine and an additional 4% permanent partial
disability for his lumbar spine. The Board of Review affirmed
the modification made by the Office of Judges in a decision
dated December 19, 2014.
Kidd was examined by Robert B. Walker, M.D., for an
independent medical evaluation in support of his attempt to
reopen his claim for the consideration of an additional
permanent partial disability award. In his report dated
September 29, 2016, Dr. Walker indicated that Mr. Kidd was
properly placed into Lumbar Category II for 8% impairment. In
regard to the thoracic spine, Dr. Walker utilized the range
of motion model of the American Medical Association,
Guides to the Evaluation of Permanent Impairment,
(4th ed. 1993), and placed Mr. Kidd into Thoracic
Category II with a finding of 5% whole person impairment.
claim was subsequently reopened and Mr. Kidd was referred to
Marsha Lee Bailey, M.D., for an independent medical
evaluation. In a report dated April 11, 2017, Dr. Bailey
reported that Mr. Kidd showed a significant amount of symptom
magnification at the time of evaluation. She concluded that
Mr. Kidd has 0% impairment as a result of his thoracic and
lumbar injuries. Dr. Bailey noted that Mr. Kidd had
previously been awarded for his lumbar and thoracic
complaints and stated that he has ...