Appeal No. 2052823) (Claim No. 2015018651)
David Harris, by Counsel Linda Garrett, appeals the decision
of the West Virginia Workers' Compensation Board of
Review ("Board of Review"). Emerald Processing,
LLC, by Counsel Steven Wellman, filed a timely response.
issue on appeal is permanent partial disability. The claims
administrator granted an 8% permanent partial disability
award on November 9, 2016. The Office of Judges affirmed the
decision in its April 5, 2018, Order. The Order was affirmed
by the Board of Review on October 19, 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
Harris, a coal miner, was injured in the course of his
employment on January 7, 2015, when he was pinned between a
coal rib and a miner. The claim was held compensable for
abdomen contusion. A lower extremity EMG was performed on May
8, 2015, and there were no abnormal findings. A lumbar MRI
was performed on January 29, 2016 and revealed multilevel
disc bulges, facet arthropathy from L2-L5, mild to moderate
canal stenosis, moderate to severe bilateral neuroforaminal
stenosis from L3-L5, and questionable epidural lipomatosis.
Contusion of trunk was added to the claim on May 25, 2016.
Mukkamala, M.D., performed an independent medical evaluation
on November 1, 2016, in which he diagnosed status post
laparoscopic repair of bilateral inguinal hernia and
umbilical hernia. Dr. Mukkamala found that Mr. Harris had
reached maximum medical improvement. He assessed 0%
impairment for the hernia. For the lumbar spine, Dr.
Mukkamala placed Mr. Harris in Lumbar Category IV of West
Virginia Code of State Rules § 85-20-C (2006) and
assessed 20% impairment. He apportioned 12% to preexisting
degenerative spondyloarthropathy which resulted in spinal
stenosis that required spinal fusion. This left 8% impairment
due to the work-related injury. Based on Dr. Mukkamala's
assessment, the claims administrator granted an 8% permanent
partial disability award on November 9, 2016.
11, 2017, Robert Walker, M.D., performed an independent
medical evaluation in which he found 14% impairment for range
of motion abnormalities in the lumbar spine. Mr. Harris was
placed in Category IV-D from Table 75 of West Virginia Code
of State Rules § 85-20-C for an additional 12%
impairment. The impairments combined to 25% impairment. Mr.
Harris was then assigned to Lumbar Category IV, which allows
for between 20 and 23% impairment. The impairment was
therefore adjusted to 23%. Dr. Walker noted that 20 to 23% of
the impairment is allocated to the surgical fusion regardless
of range of motion, so 4% impairment should be apportioned
for preexisting degenerative changes. His final
recommendation was 21% impairment due to the compensable
January 16, 2018, independent medical evaluation, Marsha
Bailey, M.D., diagnosed chronic lower back pain with resolved
left lumbar radiculopathy. She opined that Mr. Harris had
reached maximum medical improvement long ago. Using the
American Medical Association's Guides to the
Evaluation of Permanent Impairment (4th ed.
1993), Dr. Bailey assessed 12% lumbar spine impairment under
Table 75. She stated that Mr. Harris's range of motion
measurements were all invalid due to pain. Dr. Bailey placed
Mr. Harris in Lumbar Category IV under West Virginia Code of
State Rules § 85-20-C and adjusted the rating to 20%.
She then apportioned 13% to preexisting degenerative disc and
joint disease. She therefore assessed 7% impairment for the
compensable injury. Dr. Bailey stated that Dr. Walker's
report was flawed and should be considered invalid. He
apportioned impairment prior to applying West Virginia Code
of State Rules § 85-20. He also failed to include two
pages of the required low back examination form.
Office of Judges affirmed the claims administrator's
grant of an 8% permanent partial disability award on April 5,
2018. It found that this Court has previously stated in
Freddie Browning v. Brayman Construction, No.
13-0183, 2014 WL 2922692 ( W.Va. June 27, 2014)(memorandum
decision), that apportionment for preexisting conditions
should occur after the application of West Virginia Code of
State Rules § 85-20. The Office of Judges determined in
the case at bar that Dr. Walker failed to properly apportion
for the preexisting conditions as he apportioned prior to
applying West Virginia Code of State Rules § 85-20-C.
His rating was therefore incorrect. The Office of Judges
further determined that Dr. Bailey was unable to find valid
range of motion measurements during her evaluation. Dr.
Mukkamala therefore provided the most accurate and reliable
assessment of Mr. Harris's impairment. The Board of
Review adopted the findings of fact and conclusions of law of
the Office of Judges and affirmed its Order on October 19,
review, we agree with the reasoning and conclusions of the
Office of Judges as affirmed by the Board of Review. In
SWVA, Inc. v. Birch, 237 W.Va. 393, 399, 787 S.E.2d
664, 670 (2016), this Court held that
in fixing the amount of a permanent partial disability award
for a compensable injury suffered by a workers'
compensation claimant who has a noncompensable preexisting
definitely ascertainable impairment, the correct methodology
pursuant to W.Va. Code § 23-4-9b (2003) is to deduct the
impairment attributable to the preexisting injury from the
final whole person impairment rating as determined under West
Code of State Rules § 85-20.
Walker clearly apportioned prior to the application of West
Virginia Code of State Rules § 85-20, and his report is
unreliable. The Office of Judges, and by extension Board of
Review, were correct in finding that Dr. Mukkamala provided
an accurate and reliable assessment of Mr. Harris's
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 ...